ex10_1.htm


    
      

    

    

      REVOLVING
CREDIT AGREEMENT

      


      dated
as of December 18, 2009

      


      among

      


      ESSEX
PORTFOLIO, L.P.,

      a
California limited partnership,

      


      THE
LENDERS LISTED HEREIN,

      


      PNC
BANK, NATIONAL ASSOCIATION

      as
Administrative Agent,

      


      and

      


      PNC
CAPITAL MARKETS LLC

      as
Sole Lead Arranger and Sole Book Runner


      
        
           


        

        
           


          
            

          

        

        
           


        

      


      TABLE OF
CONTENTS

      


      
        	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	
                Page

              
	
                1.

              	 
      	
                DEFINITIONS.

              	 
      	
                1

              
	 
      	 
      	
                1.1

              	 
      	
                Defined
      Terms

              	 
      	
                1

              
	 
      	 
      	
                1.2

              	 
      	
                Other
      Interpretive Provisions

              	 
      	
                21

              
	 
      	 
      	 
      	 
      	
                1.2.1

              	 
      	
                Use
      of Defined Terms

              	 
      	
                21

              
	 
      	 
      	 
      	 
      	
                1.2.2

              	 
      	
                Certain
      Common Terms

              	 
      	
                21

              
	 
      	 
      	 
      	 
      	
                1.2.3

              	 
      	
                Accounting
      Principles

              	 
      	
                22

              
	 
      	 
      	 
      	 
      	
                1.2.4

              	 
      	
                Letter
      of Credit Amounts

              	 
      	
                22

              
	
                2.

              	 
      	
                LOAN
      AMOUNTS AND TERMS

              	 
      	
                23

              
	 
      	 
      	
                2.1

              	 
      	
                Amount
      and Terms of Commitment

              	 
      	
                23

              
	 
      	 
      	 
      	 
      	
                2.1.1

              	 
      	
                No
      Obligation to Issue Letters of Credit Under Certain
      Circumstances

              	 
      	
                24

              
	 
      	 
      	 
      	 
      	
                2.1.2

              	 
      	
                Letter
      of Credit Amendments

              	 
      	
                25

              
	 
      	 
      	 
      	 
      	
                2.1.3

              	 
      	
                Applicability
      of ISP98

              	 
      	
                25

              
	 
      	 
      	
                2.2

              	 
      	
                Swing
      Line

              	 
      	
                25

              
	 
      	 
      	 
      	 
      	
                2.2.1

              	 
      	
                Swing
      Loans

              	 
      	
                25

              
	 
      	 
      	 
      	 
      	
                2.2.2

              	 
      	
                Interest
      on Swing Loans

              	 
      	
                25

              
	 
      	 
      	 
      	 
      	
                2.2.3

              	 
      	
                Principal
      Payable on Swing Loans

              	 
      	
                26

              
	 
      	 
      	 
      	 
      	
                2.2.4

              	 
      	
                Prepayments
      of Swing Loans

              	 
      	
                26

              
	 
      	 
      	 
      	 
      	
                2.2.5

              	 
      	
                Funding
      of Participations

              	 
      	
                26

              
	 
      	 
      	 
      	 
      	
                2.2.6

              	 
      	
                Refinancing
      of Swing Loans

              	 
      	
                27

              
	 
      	 
      	 
      	 
      	
                2.2.7

              	 
      	
                Termination
      of Swing Line

              	 
      	
                28

              
	 
      	 
      	 
      	 
      	
                2.2.8

              	 
      	
                No
      Swing Loans Upon Default

              	 
      	
                28

              
	 
      	 
      	
                2.3

              	 
      	
                Procedure
      for Obtaining Credit (Loans, Swing Loans and Letters of
      Credit)

              	 
      	
                28

              
	 
      	 
      	
                2.4

              	 
      	
                Loan
      Accounts; Notes.

              	 
      	
                29

              
	 
      	 
      	 
      	 
      	
                2.4.1

              	 
      	
                Loan
      Accounts

              	 
      	
                29

              
	 
      	 
      	 
      	 
      	
                2.4.2

              	 
      	
                Notes

              	 
      	
                29

              
	 
      	 
      	
                2.5

              	 
      	
                Letters
      of Credit.

              	 
      	
                30

              
	 
      	 
      	 
      	 
      	
                2.5.1

              	 
      	
                Letter
      of Credit Drawings and Reimbursements; Funding of
      Participations.

              	 
      	
                30

              
	 
      	 
      	 
      	 
      	
                2.5.2

              	 
      	
                Repayment
      of Participations

              	 
      	
                31

              
	 
      	 
      	 
      	 
      	
                2.5.3

              	 
      	
                Obligations
      Absolute

              	 
      	
                32

              
	 
      	 
      	 
      	 
      	
                2.5.4

              	 
      	
                Role
      of Letter of Credit Issuer

              	 
      	
                32

              
	 
      	 
      	 
      	 
      	
                2.5.5

              	 
      	
                Cash
      Collateral

              	 
      	
                33

              
	 
      	 
      	
                2.6

              	 
      	
                Conversion
      and Continuation Elections of Loans

              	 
      	
                34

              
	 
      	 
      	 
      	 
      	
                2.6.1

              	 
      	
                Election
      to Convert and Renew

              	 
      	
                34

              
	 
      	 
      	 
      	 
      	
                2.6.2

              	 
      	
                Notice
      of Conversion/Continuation

              	 
      	
                34

              
	 
      	 
      	 
      	 
      	
                2.6.3

              	 
      	
                Failure
      to Select a New Interest Period

              	 
      	
                34

              
	 
      	 
      	 
      	 
      	
                2.6.4

              	 
      	
                Number
      of Interest Periods

              	 
      	
                35

              
	 
      	 
      	
                2.7

              	 
      	
                Voluntary
      Termination or Reduction of Commitment

              	 
      	
                35

              
	 
      	 
      	
                2.8

              	 
      	
                Principal
      Payments

              	 
      	
                35

              
	 
      	 
      	 
      	 
      	
                2.8.1

              	 
      	
                Optional
      Prepayments of the Loans

              	 
      	
                35

              
	 
      	 
      	 
      	 
      	
                2.8.2

              	 
      	
                Mandatory
      Repayments

              	 
      	
                35

              


      


      
        
           


        

        
          i

          
            

          

        

        
           


        

      

      


      
        	 
      	 
      	 
      	 
      	
                2.8.3

              	 
      	
                Repayment
      at Maturity

              	 
      	
                36

              
	 
      	 
      	
                2.9

              	 
      	
                Extension
      of Maturity Date

              	 
      	
                36

              
	 
      	 
      	
                2.10

              	 
      	
                Interest

              	 
      	
                36

              
	 
      	 
      	 
      	 
      	
                2.10.1

              	 
      	
                Accrual
      Rate

              	 
      	
                36

              
	 
      	 
      	 
      	 
      	
                2.10.2

              	 
      	
                Payment

              	 
      	
                37

              
	 
      	 
      	 
      	 
      	
                2.10.3

              	 
      	
                Default
      Interest

              	 
      	
                37

              
	 
      	 
      	 
      	 
      	
                2.10.4

              	 
      	
                Maximum
      Legal Rate

              	 
      	
                37

              
	 
      	 
      	
                2.11

              	 
      	
                Fees

              	 
      	
                37

              
	 
      	 
      	 
      	 
      	
                2.11.1

              	 
      	
                Facility
      Fee

              	 
      	
                37

              
	 
      	 
      	 
      	 
      	
                2.11.2

              	 
      	
                Letter
      of Credit Fees

              	 
      	
                38

              
	 
      	 
      	 
      	 
      	
                2.11.3

              	 
      	
                Other
      Fees

              	 
      	
                38

              
	 
      	 
      	
                2.12

              	 
      	
                Computation
      of Fees and Interest

              	 
      	
                38

              
	 
      	 
      	
                2.13

              	 
      	
                Payments
      by Borrower

              	 
      	
                38

              
	 
      	 
      	 
      	 
      	
                2.13.1

              	 
      	
                Timing
      of Payments

              	 
      	
                38

              
	 
      	 
      	 
      	 
      	
                2.13.2

              	 
      	
                Non-Business
      Days

              	 
      	
                39

              
	 
      	 
      	 
      	 
      	
                2.13.3

              	 
      	
                Payment
      May be Made by Administrative Agent

              	 
      	
                39

              
	 
      	 
      	
                2.14

              	 
      	
                Payments
      by the Lenders to Administrative Agent

              	 
      	
                39

              
	 
      	 
      	 
      	 
      	
                2.14.1

              	 
      	
                Administrative
      Agent May Make Borrowings Available

              	 
      	
                39

              
	 
      	 
      	 
      	 
      	
                2.14.2

              	 
      	
                Obligations
      of Lenders Several

              	 
      	
                40

              
	 
      	 
      	 
      	 
      	
                2.14.3

              	 
      	
                Failure
      to Satisfy Conditions Precedent

              	 
      	
                40

              
	 
      	 
      	 
      	 
      	
                2.14.4

              	 
      	
                Funding
      Source

              	 
      	
                40

              
	 
      	 
      	
                2.15

              	 
      	
                Sharing
      of Payments, Etc.

              	 
      	
                40

              
	 
      	 
      	
                2.16

              	 
      	
                Defaulting
      Lender

              	 
      	
                41

              
	 
      	 
      	 
      	 
      	
                2.16.1

              	 
      	
                Notice
      and Cure of Lender Default; Election Period; Electing
    Lenders

              	 
      	
                41

              
	 
      	 
      	 
      	 
      	
                2.16.2

              	 
      	
                Removal
      of Rights: Indemnity

              	 
      	
                41

              
	 
      	 
      	 
      	 
      	
                2.16.3

              	 
      	
                Commitment
      Adjustments

              	 
      	
                42

              
	 
      	 
      	 
      	 
      	
                2.16.4

              	 
      	
                No
      Election

              	 
      	
                42

              
	
                3.

              	 
      	
                TAXES,
      YIELD PROTECTION AND ILLEGALITY.

              	 
      	
                43

              
	 
      	 
      	
                3.1

              	 
      	
                Taxes

              	 
      	 
      	 
      	
                43

              
	 
      	 
      	 
      	 
      	
                3.1.1

              	 
      	
                Payments
      Free of Taxes

              	 
      	
                43

              
	 
      	 
      	 
      	 
      	
                3.1.2

              	 
      	
                Payment
      of Other Taxes by Borrower

              	 
      	
                43

              
	 
      	 
      	 
      	 
      	
                3.1.3

              	 
      	
                Indemnification
      by Borrower

              	 
      	
                43

              
	 
      	 
      	 
      	 
      	
                3.1.4

              	 
      	
                Evidence
      of Payments

              	 
      	
                43

              
	 
      	 
      	 
      	 
      	
                3.1.5

              	 
      	
                Status
      of Lenders

              	 
      	
                43

              
	 
      	 
      	 
      	 
      	
                3.1.6

              	 
      	
                Treatment
      of Certain Refunds

              	 
      	
                44

              
	 
      	 
      	
                3.2

              	 
      	
                Illegality

              	 
      	
                44

              
	 
      	 
      	
                3.3

              	 
      	
                Increased
      Costs

              	 
      	
                45

              
	 
      	 
      	 
      	 
      	
                3.3.1

              	 
      	
                Increased
      Costs Generally

              	 
      	
                45

              
	 
      	 
      	 
      	 
      	
                3.3.2

              	 
      	
                Capital
      Requirements

              	 
      	
                45

              
	 
      	 
      	 
      	 
      	
                3.3.3

              	 
      	
                Delay
      in Requests

              	 
      	
                46

              
	 
      	 
      	
                3.4

              	 
      	
                Funding
      Losses

              	 
      	
                46

              
	 
      	 
      	
                3.5

              	 
      	
                Inability
      to Determine Rates

              	 
      	
                47

              
	 
      	 
      	
                3.6

              	 
      	
                Certificate
      of Lender

              	 
      	
                47

              
	 
      	 
      	
                3.7

              	 
      	
                Mitigation
      Obligations; Replacement of Lenders

              	 
      	
                47

              
	 
      	 
      	
                3.8

              	 
      	
                Survival

              	 
      	
                47

              


      


      
        
           


        

        
          ii

          
            

          

        

        
           


        

      

      


      
        	
                4.

              	 
      	
                UNENCUMBERED
      ASSET POOL.

              	 
      	
                48

              
	 
      	 
      	
                4.1

              	 
      	
                Additions
      of Property to the Unencumbered Asset Pool

              	 
      	
                48

              
	 
      	 
      	
                4.2

              	 
      	
                Delivery
      of Information

              	 
      	
                51

              
	
                5.

              	 
      	
                CONDITIONS
      TO DISBURSEMENTS.

              	 
      	
                52

              
	 
      	 
      	
                5.1

              	 
      	
                Conditions
      to Initial Loans

              	 
      	
                52

              
	 
      	 
      	 
      	 
      	
                5.1.1

              	 
      	
                Deliveries
      to Administrative Agent

              	 
      	
                52

              
	 
      	 
      	 
      	 
      	
                5.1.2

              	 
      	
                Payment
      of Fees

              	 
      	
                53

              
	 
      	 
      	 
      	 
      	
                5.1.3

              	 
      	
                Payment
      of Expenses

              	 
      	
                54

              
	 
      	 
      	
                5.2

              	 
      	
                Conditions
      of all Borrowings and Letters of Credit

              	 
      	
                54

              
	
                6.

              	 
      	
                COVENANTS
      OF BORROWER

              	 
      	
                54

              
	 
      	 
      	
                6.1

              	 
      	
                Specific
      Affirmative Covenants

              	 
      	
                54

              
	 
      	 
      	 
      	 
      	
                6.1.1

              	 
      	
                Compliance
      with Law

              	 
      	
                54

              
	 
      	 
      	 
      	 
      	
                6.1.2

              	 
      	
                Site
      Visits

              	 
      	
                55

              
	 
      	 
      	 
      	 
      	
                6.1.3

              	 
      	
                Insurance

              	 
      	
                55

              
	 
      	 
      	 
      	 
      	
                6.1.4

              	 
      	
                Preservation
      of Rights

              	 
      	
                56

              
	 
      	 
      	 
      	 
      	
                6.1.5

              	 
      	
                Taxes

              	 
      	
                56

              
	 
      	 
      	
                6.2

              	 
      	
                Payment
      of Expenses

              	 
      	
                57

              
	 
      	 
      	
                6.3

              	 
      	
                Financial
      and Other Information; Certification

              	 
      	
                57

              
	 
      	 
      	
                6.4

              	 
      	
                Notices

              	 
      	
                60

              
	 
      	 
      	
                6.5

              	 
      	
                Negative
      Covenants.

              	 
      	
                61

              
	 
      	 
      	 
      	 
      	
                6.5.1

              	 
      	
                Limitations
      on Certain Activities

              	 
      	
                61

              
	 
      	 
      	 
      	 
      	
                6.5.2

              	 
      	
                Acquisition
      Down-REITs

              	 
      	
                62

              
	 
      	 
      	
                6.6

              	 
      	
                Type
      of Business; Development Covenants

              	 
      	
                63

              
	 
      	 
      	
                6.7

              	 
      	
                Performance
      of Acts

              	 
      	
                63

              
	 
      	 
      	
                6.8

              	 
      	
                Keeping
      Guarantor Informed

              	 
      	
                63

              
	 
      	 
      	
                6.9

              	 
      	
                Maximum
      Total Liabilities to Gross Asset Value

              	 
      	
                64

              
	 
      	 
      	
                6.10

              	 
      	
                Debt
      Ratios

              	 
      	
                64

              
	 
      	 
      	
                6.11

              	 
      	
                Fixed
      Charge Coverage Ratio

              	 
      	
                64

              
	 
      	 
      	
                6.12

              	 
      	
                Debt
      Service Coverage Ratio

              	 
      	
                64

              
	 
      	 
      	
                6.13

              	 
      	
                Maximum
      Quarterly Dividends

              	 
      	
                64

              
	 
      	 
      	
                6.14

              	 
      	
                Negative
      Pledge; Limitations on Affiliate Indebtedness.

              	 
      	
                64

              
	 
      	 
      	
                6.15

              	 
      	
                Change
      in Ownership of Borrower or Management of the Unencumbered Asset Pool
      Property

              	 
      	
                65

              
	 
      	 
      	
                6.16

              	 
      	
                Books
      and Records

              	 
      	
                65

              
	 
      	 
      	
                6.17

              	 
      	
                Audits

              	 
      	
                65

              
	 
      	 
      	
                6.18

              	 
      	
                Cooperation

              	 
      	
                66

              
	 
      	 
      	
                6.19

              	 
      	
                ERISA
      Plans

              	 
      	
                66

              
	 
      	 
      	
                6.20

              	 
      	
                Use
      of Proceeds

              	 
      	
                66

              
	 
      	 
      	
                6.21

              	 
      	
                Use
      of Proceeds – Ineligible Securities

              	 
      	
                66

              
	
                7.

              	 
      	
                Representations
      and Warranties

              	 
      	
                66

              
	 
      	 
      	
                7.1

              	 
      	
                Organization
      of Borrower, Guarantor and each Permitted Affiliate

              	 
      	
                66

              
	 
      	 
      	
                7.2

              	 
      	
                Authorization

              	 
      	
                66

              
	 
      	 
      	
                7.3

              	 
      	
                Enforceable
      Agreement

              	 
      	
                66

              
	 
      	 
      	
                7.4

              	 
      	
                Good
      Standing

              	 
      	
                66

              
	 
      	 
      	
                7.5

              	 
      	
                No
      Conflicts

              	 
      	
                66

              
	 
      	 
      	
                7.6

              	 
      	
                Financial
      Information

              	 
      	
                67

              


      


      
        
           


        

        
          iii

          
            

          

        

        
           


        

      

      


      
        	 
      	 
      	
                7.7

              	 
      	
                Borrower
      Not a “Foreign Person”

              	 
      	
                67

              
	 
      	 
      	
                7.8

              	 
      	
                Lawsuits

              	 
      	
                67

              
	 
      	 
      	
                7.9

              	 
      	
                Permits,
      Franchises

              	 
      	
                67

              
	 
      	 
      	
                7.10

              	 
      	
                Other
      Obligations

              	 
      	
                67

              
	 
      	 
      	
                7.11

              	 
      	
                Income
      Tax Returns

              	 
      	
                67

              
	 
      	 
      	
                7.12

              	 
      	
                No
      Event of Default

              	 
      	
                67

              
	 
      	 
      	
                7.13

              	 
      	
                ERISA
      Plans

              	 
      	
                68

              
	 
      	 
      	
                7.14

              	 
      	
                Location
      of Borrower

              	 
      	
                68

              
	 
      	 
      	
                7.15

              	 
      	
                No
      Required Third Party/Governmental Approvals

              	 
      	
                68

              
	 
      	 
      	
                7.16

              	 
      	
                Regulated
      Entities

              	 
      	
                68

              
	
                8.

              	 
      	
                DEFAULT
      AND REMEDIES

              	 
      	
                68

              
	 
      	 
      	
                8.1

              	 
      	
                Events
      of Default

              	 
      	
                68

              
	 
      	 
      	
                8.2

              	 
      	
                Remedies

              	 
      	
                71

              
	 
      	 
      	 
      	 
      	
                8.2.1

              	 
      	
                Termination
      of Commitment to Lend

              	 
      	
                71

              
	 
      	 
      	 
      	 
      	
                8.2.2

              	 
      	
                Acceleration
      of Loans

              	 
      	
                71

              
	 
      	 
      	 
      	 
      	
                8.2.3

              	 
      	
                Security
      for Letters of Credit

              	 
      	
                71

              
	 
      	 
      	 
      	 
      	
                8.2.4

              	 
      	
                Exercise
      of Rights and Remedies

              	 
      	
                71

              
	 
      	 
      	
                8.3

              	 
      	
                Application
      of Funds

              	 
      	
                71

              
	
                9.

              	 
      	
                ADMINISTRATIVE
      AGENT

              	 
      	
                72

              
	 
      	 
      	
                9.1

              	 
      	
                Appointment
      and Authority

              	 
      	
                72

              
	 
      	 
      	
                9.2

              	 
      	
                Rights
      as a Lender

              	 
      	
                72

              
	 
      	 
      	
                9.3

              	 
      	
                Exculpatory
      Provisions

              	 
      	
                73

              
	 
      	 
      	 
      	 
      	
                9.3.1

              	 
      	
                Limitation
      of Administrative Agent’s Duties

              	 
      	
                73

              
	 
      	 
      	 
      	 
      	
                9.3.2

              	 
      	
                Limitation
      of Administrative Agent’s Liability

              	 
      	
                73

              
	 
      	 
      	 
      	 
      	
                9.3.3

              	 
      	
                Limitation
      of Administrative Agent’s Responsibilities

              	 
      	
                73

              
	 
      	 
      	
                9.4

              	 
      	
                Reliance
      by Administrative Agent

              	 
      	
                74

              
	 
      	 
      	
                9.5

              	 
      	
                Delegation
      of Duties

              	 
      	
                74

              
	 
      	 
      	
                9.6

              	 
      	
                Resignation
      of Administrative Agent

              	 
      	
                74

              
	 
      	 
      	 
      	 
      	
                9.6.1

              	 
      	
                Notice
      of Resignation

              	 
      	
                74

              
	 
      	 
      	 
      	 
      	
                9.6.2

              	 
      	
                Resignation
      by PNC Bank

              	 
      	
                75

              
	 
      	 
      	
                9.7

              	 
      	
                Non-Reliance
      on Administrative Agent and Other Lenders

              	 
      	
                75

              
	 
      	 
      	
                9.8

              	 
      	
                No
      Other Duties, Etc.

              	 
      	
                75

              
	 
      	 
      	
                9.9

              	 
      	
                Administrative
      Agent May File Proofs of Claim

              	 
      	
                76

              
	 
      	 
      	
                9.10

              	 
      	
                Release
      of Permitted Affiliate from Payment Guaranty

              	 
      	
                76

              
	
                10.

              	 
      	
                MISCELLANEOUS
      PROVISIONS

              	 
      	
                76

              
	 
      	 
      	
                10.1

              	 
      	
                Amendments
      and Waivers

              	 
      	
                76

              


      


      
        
           


        

        
          iv

          
            

          

        

        
           


        

      

      


      
        	 
      	 
      	
                10.2

              	 
      	
                Notices;
      Effectiveness; Electronic Communication

              	 
      	
                78

              
	 
      	 
      	
                10.3

              	 
      	
                No
      Waiver; Cumulative Remedies

              	 
      	
                80

              
	 
      	 
      	
                10.4

              	 
      	
                Costs
      and Expenses; Indemnity; Waiver of Consequential Damages,
    Etc.

              	 
      	
                80

              
	 
      	 
      	
                10.5

              	 
      	
                Successors
      and Assigns

              	 
      	
                82

              
	 
      	 
      	
                10.6

              	 
      	
                Confidentiality

              	 
      	
                85

              
	 
      	 
      	
                10.7

              	 
      	
                Right
      of Setoff

              	 
      	
                86

              
	 
      	 
      	
                10.8

              	 
      	
                No
      Third Parties Benefited

              	 
      	
                86

              
	 
      	 
      	
                10.9

              	 
      	
                Payments
      Set Aside

              	 
      	
                86

              
	 
      	 
      	
                10.10

              	 
      	
                Counterparts;
      Integration; Effectiveness

              	 
      	
                87

              
	 
      	 
      	
                10.11

              	 
      	
                Survival
      of Representations and Warranties

              	 
      	
                87

              
	 
      	 
      	
                10.12

              	 
      	
                Severability

              	 
      	
                87

              
	 
      	 
      	
                10.13

              	 
      	
                Replacement
      of Lenders

              	 
      	
                87

              
	 
      	 
      	
                10.14

              	 
      	
                Governing
      Law; Jurisdiction; Etc.

              	 
      	
                88

              
	 
      	 
      	
                10.15

              	 
      	
                Waiver
      of Jury Trial

              	 
      	
                89

              
	 
      	 
      	
                10.16

              	 
      	
                Judicial
      Reference

              	 
      	
                89

              
	 
      	 
      	
                10.17

              	 
      	
                USA
      PATRIOT Act Notice

              	 
      	
                90

              
	 
      	 
      	
                10.18

              	 
      	
                Time
      of the Essence

              	 
      	
                90

              
	 
      	 
      	
                10.19

              	 
      	
                No
      Fiduciary Relationship

              	 
      	
                90

              


      

      


      
        	
                SCHEDULE
      1.1

              	 
      	
                LENDERS'
      NAMES AND PRO RATA SHARES

              
	
                SCHEDULE
      1.2

              	 
      	
                ADMINISTRATIVE
      AGENT'S OFFICE; ADMINISTRATIVE AGENT'S PAYMENT OFFICE

              
	
                SCHEDULE
      1.3

              	 
      	
                PERMITTED
      AFFILIATES

              
	
                SCHEDULE
      1.4

              	 
      	
                PROCESSING
      AND RECORDATION FEES

              
	 
      	 
      	 
      
	
                EXHIBIT
      A-1

              	 
      	
                UNENCUMBERED
      STABILIZED ASSET PROPERTY

              
	
                EXHIBIT
      A-2

              	 
      	
                UNENCUMBERED
      WORK IN PROCESS PROPERTY

              
	
                EXHIBIT
      B

              	 
      	
                FORM
      OF NOTICE OF BORROWING OR CONVERSION/CONTINUATION

              
	
                EXHIBIT
      C

              	 
      	
                FORM
      OF LETTER OF CREDIT APPLICATION

              
	
                EXHIBIT
      D

              	 
      	
                COMPLIANCE
      CERTIFICATE

              
	
                EXHIBIT
      E

              	 
      	
                FORM
      OF ASSIGNMENT AND ASSUMPTION

              
	
                EXHIBIT
      F-1

              	 
      	
                FORM
      OF PAYMENT GUARANTY (GUARANTOR)

              
	
                EXHIBIT
      F-2

              	 
      	
                FORM
      OF PAYMENT GUARANTY (PERMITTED AFFILIATE)

              
	
                EXHIBIT
      G-1

              	 
      	
                FORM
      OF REVOLVING NOTE

              
	
                EXHIBIT
      G-2

              	 
      	
                FORM
      OF SWING LINE NOTE

              


      


      
        
           


        

        
          v

          
            

          

        

        
           


        

      


      REVOLVING CREDIT
AGREEMENT

      


      This
REVOLVING CREDIT AGREEMENT, dated as of December 18, 2009 (this “Agreement”), is among
ESSEX PORTFOLIO, L.P., a California limited partnership (“Borrower”), the
several financial institutions from time to time party to this Agreement
(collectively, the “Lenders” and
individually, a “Lender”), and PNC
BANK, NATIONAL ASSOCIATION, as administrative agent for the Lenders (in such
capacity, “Administrative
Agent”) and as Swing Line Lender and L/C Issuer.

      


      Background

      


      WHEREAS, Borrower has
requested that Lenders make available, and Administrative Agent administer, an
unsecured revolving credit facility in the maximum principal amount of
$200,000,000; and

      


      WHEREAS, Lenders are willing
to make available to Borrower, and Administrative Agent is willing to
administer, such facility, subject to and upon the terms and conditions set
forth herein.

      


      Agreement

      


      NOW, THEREFORE, in
consideration of the mutual covenants and agreements set forth herein, the
parties agree as follows:

      


      
        	
                1.

              	
                DEFINITIONS.

              


      

      


      1.1           Defined Terms.  In
addition to the terms defined elsewhere in this Agreement, the following terms
have the following meanings:

      


      “Acquisition
down-RElT” shall have the meaning set forth in Section
6.5.2(1).

      


      “Act” shall have the
meaning set forth in Section
10.17.

      


      “Administrative Agent”
means PNC Bank, National Association, in its capacity as administrative agent
for the Lenders hereunder and under the other Loan Documents, and any successor
administrative agent designated under Section
9.6.

      


      “Administrative Agent’s
Office” means Administrative Agent’s address and, as appropriate, account
as set forth on Schedule 1.2, or such
other address or account as Administrative Agent may from time to time notify
Borrower and the Lenders in writing.

      


      “Administrative
Questionnaire” means an Administrative Questionnaire in a form supplied
by Administrative Agent.

      


      “Affiliate” means,
with respect to a specified Person, any other Person that directly, or
indirectly through one or more intermediaries, Controls or is Controlled by or
is under common Control with the specified Person.  “Control” means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the ability
to exercise voting power, by contract or otherwise.  “Controlling” and
“Controlled”
have meanings correlative thereto.


      
        
           


        

        
          
          

          
            

          

        

        
           


        

      


      “Agent’s Payment
Office” means the address for payments set forth herein for
Administrative Agent, as specified in Schedule 1.2, or such
other address as Administrative Agent may from time to time specify by the
delivery of a written notice to Borrower and the Lenders.

      


      “Agreement” means this
Revolving Credit Agreement, as supplemented, modified, amended or amended and
restated from time to time.

      


      “Applicable Margin”
means the Applicable LIBOR Margin or the Applicable Reference Rate Margin
determined from the following pricing grid based on the current published or
private ratings of Guarantor’s senior unsecured long term debt, as provided
below:

       

      
        	
                TIER

              	
                GUARANTOR’S
      SENIOR UNSECURED LONG TERM DEBT RATING

              	
                APPLICABLE
      LIBOR  MARGIN (BPS)

              	
                FACILITY
      FEE (BPS PER ANNUM)

              	
                APPLICABLE
      REFERENCE RATE MARGIN (BPS)

              
	
                I

              	
                BBB+
      and/or Baal or better

              	
                250

              	
                25

              	
                150

              
	
                II

              	
                BBB
      and/or Baa2

              	
                275

              	
                25

              	
                175

              
	
                III

              	
                BBB-
      and/or Baa3

              	
                300

              	
                25

              	
                200

              
	
                IV

              	
                Less
      than BBB- and/or Baa3

              	
                325

              	
                25

              	
                225

              


      

      


      


      Borrower
shall provide to Administrative Agent annually, on or before June 30, written
evidence of the current rating or ratings on Guarantor’s senior unsecured long
term debt by any of Moody’s, S&P and/or Fitch, if such rating agency has
provided to Guarantor a rating on such senior unsecured long term debt, which
evidence shall be reasonably acceptable to Administrative Agent; provided, that, at a minimum,
Guarantor must provide such a rating from either Moody’s or
S&P.  In the event that Guarantor has a rating on its senior
unsecured long term debt provided by (a) both Moody’s and S&P, (b) both
Moody’s and Fitch, (c) both S&P and Fitch, or (d) each of Moody’s, S&P
and Fitch, and there is a difference in rating between such rating agencies, the
Applicable Margin shall be based on the lower rating.  Changes in the
Applicable Margin shall become effective on the first day following the date on
which any of Moody’s, S&P or Fitch that has provided Guarantor a rating on
Guarantor’s senior unsecured long term debt changes such rating.  On
the Closing Date, the Applicable Margin shall be based on Tier III.

      


      “Applicable LIBOR
Margin” means the Applicable Margin for LIBOR Loans.

      


      “Applicable Reference Rate
Margin” means the Applicable Margin for Reference Rate
Loans.

      


      “Approved Fund” means
any Fund that is administered or managed by (a) a Lender, (b) an Affiliate
of a Lender or (c) an entity or an Affiliate of an entity that administers or
manages a Lender.

      


      “Approved Subordination
Agreement” has the meaning set forth in Section
6.14(b).


      
        
           


        

        
          2

          
            

          

        

        
           


        

      


      “Arranger” means PNC
Capital Markets LLC, in its capacity as sole lead arranger and sole book
runner.

      


      “Assignee Group” means
two or more Eligible Assignees that are Affiliates of one another or two or more
Approved Funds managed by the same investment advisor.

      


      “Assignment and
Assumption” means an assignment and assumption entered into by a Lender
and an Eligible Assignee (with the consent of any party whose consent is
required by Section
10.5), and accepted by Administrative Agent, in substantially the form of
Exhibit E or
any other form approved by Administrative Agent.

      


      “Availability” means,
at any time, an amount equal to the lesser of (a) 60% of the Unencumbered Asset
Pool Value at such time or (b) the Maximum Commitment Amount at such
time.

      


      “Borrower” has the
meaning set forth in the introductory clause hereof.

      


      “Borrower’s Knowledge”
means the actual knowledge of the general counsel, principal financial officer
or chief executive officer of the general partner of Borrower; provided, however, that, if
Administrative Agent, L/C Issuer or any Lender sends a notice with regards to
any matter pursuant to the provisions of Section 10.2 hereof,
Borrower shall be deemed to have knowledge of the matters set forth in such
notice as of the date of receipt of such written notice.

      


      “Borrowing” means a
Swing Line Borrowing or a borrowing consisting of simultaneous Loans of the same
Type and, in the case of LIBOR Loans, having the same Interest Period, made by
each of the Lenders pursuant to Section
2.1.

      


      “Business Day” means
any day other than a Saturday, Sunday or other day on which commercial banks in
New York, New York, Pittsburgh Pennsylvania and/or the state where
Administrative Agent’s Office is located, are authorized or required by Law to
close and, if the applicable Business Day relates to any LIBOR Loan, means any
such day on which dealings in dollar deposits are conducted by and between banks
in the London interbank eurodollar market.

      


      “Capital Interest”
means, with respect to any Joint Venture, the ratio of (i) Borrower’s
contribution to the capital of such Joint Venture to (ii) the aggregate amount
of all contributions to the capital of such Joint Venture.

      


      “Capitalization Rate”
means 7.25%.

      


      “Capital Reserve”
means $62.50 per unit per quarter for all real properties owned by Guarantor and
its consolidated subsidiaries, excluding, however, units owned by Acquisition
down-REITs.

      


      “Cash Collateralize”
has the meaning set forth in Section
2.5.5.  Derivatives of such term have corresponding
meanings.

      


      “Change in Law” means
the occurrence, after the date of this Agreement, of any of the following: (a)
the adoption or taking effect of any law, rule, regulation or treaty by any
Governmental Authority, (b) any change in any law, rule, regulation or treaty or
in the administration, interpretation or application thereof by any Governmental
Authority or (c) the making or issuance of any request, guideline or directive
(whether or not having the force of law) by any Governmental
Authority.


      
        
           


        

        
          3

          
            

          

        

        
           


        

      


      “Closing Date” means
the earliest date on which all conditions precedent set forth in Section 5.1 are
satisfied or waived in accordance with Section
10.1(a).

      


      “Code” means the
Internal Revenue Code of 1986, as amended from time to time, and any regulations
promulgated thereunder.

      


      “Commitment” means, as
to each Lender, its obligation to (a) make Loans to Borrower pursuant to Section 2, (b)
purchase participations in L/C Obligations, and (c) purchase participations in
Swing Loans, in an aggregate principal amount at any one time outstanding not to
exceed the amount set forth opposite such Lender’s name on Schedule 1.1 or in
the Assignment and Assumption pursuant to which such Lender becomes a party
hereto, as applicable, as such amount may be adjusted from time to time in
accordance with this Agreement.

      


      “Completion of
Construction” means, with respect to any real property, the date that
final certificates of occupancy have been issued for all buildings on such
property.

      


      “Compliance
Certificate” shall have the meaning set forth in Section
4.1(b).

      


      “Creditor” has the
meaning set forth in Section
6.14(b).

      


      “Daily LIBOR Rate”
shall mean, for any day, the rate per annum determined
by  Administrative Agent by dividing (x) the Published Rate by (y) a
number equal to 1.00 minus the LIBOR Reserve Percentage.

      


      “Debt Service” means
with respect to any Indebtedness, the sum of (x) the aggregate interest
payments, Letter of Credit Fee and other fees paid or payable in respect of or
relating to such Indebtedness, plus (y) the aggregate principal installments
paid and payable (but not balloon payments due at maturity) in respect of or
relating thereto.

      


      “Default” means any
event or circumstance which, with notice or the passage of time or both, would
become an Event of Default.

      


      “Defaulting Lender”
means any Lender that (a) has failed to fund any portion of the Loans,
participations in L/C Obligations or participations in Swing Loans required to
be funded by it hereunder within one Business Day of the date required to be
funded by it hereunder, unless such failure has been cured, (b) has otherwise
failed to pay over to Administrative Agent or any other Lender any other amount
required to be paid by it hereunder within one Business Day of the date when
due, unless the subject of a good faith dispute or such failure has been cured,
or (c) has been deemed insolvent or become the subject of a bankruptcy or
insolvency proceeding.

      


      “Defaulting Lender
Amount” has the meaning given to it in Section
2.16.1.


      
        
           


        

        
          4

          
            

          

        

        
           


        

      


      “Defaulting Lender
Notice” has the meaning given to it in Section
2.16.1.

      


      “Default Rate” means
the per annum rate of interest that is 400 basis points in excess of the rate
otherwise applicable.

      


      “Designated Borrower’s
Account” has the meaning given to it in Section
9.4.

      


      “Dollar” and “$” mean lawful money
of the United States.

      


      “EBITDA” means, for
any fiscal period of Guarantor and its consolidated subsidiaries, (a) the sum
for such period of (i) consolidated net income, (ii) consolidated interest
expense (including capitalized interest expense); (iii) consolidated charges
against income for all federal, state and local taxes based on income, (iv)
consolidated depreciation expense, (v) consolidated amortization expense, (vi)
the aggregate amount of other non-cash charges and expenses, and (vii) the
aggregate amount of extraordinary losses included in the determination of
consolidated net income for such period, less (b) the
aggregate amount of extraordinary gains included in the determination of
consolidated net income for such period, and in each case excluding all
Non-Borrower Interests, all as determined in accordance with GAAP, consistently
applied.  For purposes of this definition, EBITDA includes Borrower’s
pro rata shares of interest expense, federal, state and local taxes based on
income, depreciation expense and amortization expense for Joint Ventures, based
on its Capital Interests in such Joint Ventures.

      


      “Electing Lender” has
the meaning given to it in Section
2.16.1.

      


      “Election Notice” has
the meaning given to it in Section
2.16.1.

      


      “Election Period”
shall have the meaning set forth in Section
2.16.1.

      


      “Eligible Assignee”
means (a) a Lender; (b) an Affiliate of a Lender; (c) an Approved Fund; (d) an
Eligible Lender, and (e) any other Person (other than a natural person) approved
by (i) Administrative Agent in its reasonable discretion, and (ii) unless an
Event of Default has occurred and is continuing, Borrower (each such approval by
Borrower not to be unreasonably withheld or delayed); provided, however,
that notwithstanding the foregoing, “Eligible Assignee” shall not include
Borrower or any of Borrower’s Affiliates or subsidiaries.  Approval by
Administrative Agent or, if required, by Borrower of any Person as an Eligible
Assignee shall not constitute a waiver of any right to approve any other Person
before such other Person can become an Eligible Assignee.

      


      “Eligible Lender”
means any Person, other than Borrower or any Affiliates or subsidiaries of
Borrower who (i) is rated BBB or better by S&P or Baa2 or better by Moody’s
or is a commercial bank, financial institution, institutional lender with total
assets of at least $5,000,000,000, and (ii) is regularly engaged in the business
of commercial real estate lending and maintains one or more lending offices in
the United States.

      


      “EMC” means Essex
Management Corporation, a California corporation.

      


      “Engagement Letter”
has the meaning given to it in Section
2.11.3.


      
        
           


        

        
          5

          
            

          

        

        
           


        

      


      “Environmental Laws”
means all federal, state, and local laws, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements,
governmental restrictions and regulations relating to pollution and the
protection of the environment or the release of any Hazardous Substances into
the environment, including the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601 et
seq., the Hazardous Materials Transportation Act, 49 U.S.C. § 1802, et
seq., the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq.,
the Toxic Substance Control Act of 1976, as amended, 15 U.S.C. § 2601 et
seq., the Clean Water Act, 33 U.S.C. § 466 et seq., as amended, and the
Clean Air Act, 42 U.S.C. § 7401 et seq.

      


      “ERISA” means the
Employee Retirement Income Security Act of 1974, as amended from time to
time.

      


      “ERISA Affiliate”
means any trade or business (whether or not incorporated) under common control
with Borrower within the meaning of Section 414(b) or (c) of the Code (and
Sections 414(m) and (o) of the Code for purposes of provisions relating to
Section 412 of the Code).

      


      “ERISA Event” means
(a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by
Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of
ERISA during a plan year in which it was a substantial employer (as defined in
Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as
such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial
withdrawal by Borrower or any ERISA Affiliate from a Multiemployer Plan or
notification that a Multiemployer Plan is in reorganization; (d) the filing of a
notice of intent to terminate, the treatment of a Plan amendment as a
termination under Sections 4041 or 4041A of ERISA, or the commencement of
proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e)
an event or condition which constitutes grounds under Section 4042 of ERISA for
the termination of, or the appointment of a trustee to administer, any Pension
Plan or Multiemployer Plan; or (f) the imposition of any liability under Title
IV of ERISA, other than for PBGC premiums due but not delinquent under Section
4007 of ERISA, upon Borrower or any ERISA Affiliate.

      


      “Event of Default”
means any of the events or circumstances specified in Section
8.1.

      


      “Excluded Taxes”
means, with respect to Administrative Agent, any Lender, the L/C Issuer or any
other recipient of any payment to be made by or on account of any obligation of
Borrower hereunder, (a) taxes imposed on or measured by its overall net income
(however denominated), and franchise taxes imposed on it, under the laws of any
Governmental Authority, (b) any branch profits taxes imposed by the United
States or any similar tax imposed by any Governmental Authority, and (c) in the
case of a Foreign Lender, any withholding tax that is imposed on amounts payable
to such Foreign Lender at the time such Foreign Lender becomes a party hereto
(or designates a new Lending Office) or is attributable to such Foreign Lender’s
failure or inability (other than as a result of a Change in Law) to comply with
Section 3.1.5,
except to the extent that such Foreign Lender (or its assignor, if any) was
entitled, at the time of designation of a new Lending Office (or assignment), to
receive additional amounts from Borrower with respect to such withholding tax
pursuant to Section
3.1.5.


      
        
           


        

        
          6

          
            

          

        

        
           


        

      


      “Extended Maturity
Date” means the date that immediately follows the expiration of the First
Extension Period or the Second Extension Period, as the case may be, if the
extension option for the First Extension Period or the Second Extension Period,
as the case may be, is duly  exercised by Borrower
hereunder.

      


      “Extension Period”
shall mean the First Extension Period or the Second Extension Period, as the
case may be.

      


      “Facility Fee” has the
meaning given to it in Section
2.11.1.

      


      “Federal Funds Open
Rate” shall mean, for any day, the rate per annum (based on a year of 360
days and actual days elapsed) which is the daily federal funds open rate as
quoted by ICAP North America, Inc. (or any  successor) as set forth on
the Bloomberg Screen BTMM for that day opposite the caption “OPEN” (or on such
other substitute Bloomberg Screen that displays such rate), or as set forth on
such other recognized electronic source used for the purpose of displaying such
rate as selected by Administrative Agent (an “Alternate Source”)
(or if such rate for such day does not appear on the Bloomberg Screen BTMM (or
any substitute screen) or on any Alternate Source, or if there shall at any
time, for any reason, no longer exist a Bloomberg Screen BTMM (or any substitute
screen) or any Alternate Source, a comparable replacement rate determined by
Administrative Agent at such time (which determination shall be conclusive
absent manifest error); provided however, that if such day is not a Business
Day, the Federal Funds Open Rate for such day shall be the “open” rate on the
immediately preceding Business Day.  The rate of interest charged
shall be adjusted as of each Business Day based on changes in the Federal Funds
Open Rate without notice to Borrower.

      


      “Federal Funds Rate”
means, for any day, the rate per annum equal to the weighted average of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published by
the Federal Reserve Bank of New York on the Business Day next succeeding such
day; provided
that (a) if such day is not a Business Day, the Federal Funds Rate for
such day shall be such rate on such transactions on the next preceding Business
Day as so published on the next succeeding Business Day, and (b) if no such rate
is so published on such next succeeding Business Day, the Federal Funds Rate for
such day shall be the average rate (rounded upward, if necessary, to a whole
multiple of 1/100 of 1%) charged to PNC Bank on such day on such transactions,
as determined by Administrative Agent.

      


      “First Extension
Period” shall mean the consecutive twelve (12) month period immediately
following the Original Maturity Date, as set forth in Section 2.9
hereof.

      


      “Fitch” means Fitch,
Inc.

      


      “Fixed Charges” means,
for any fiscal period of Guarantor and its consolidated subsidiaries, the sum of
the following items for such period (including Borrower’s share of each such
item for each Joint Venture based on its Capital Interest in such Joint
Venture): (i) interest expense (whether paid or accrued), other than interest
expense on Permitted Affiliate Subordinated Indebtedness, (ii) capitalized
interest expense, other than capitalized interest expense with respect to
Permitted Affiliate Subordinated Indebtedness, (iii) preferred stock dividends,
(iv) scheduled principal payments on Indebtedness, other than balloon payments
and other than payments in respect to Permitted Affiliate Subordinated
Indebtedness, and (v) a reserve for recurring capital expenditures in an amount
equal to the Capital Reserve for such period.


      
        
           


        

        
          7

          
            

          

        

        
           


        

      


      “Foreign Lender” means
any Lender that is organized under the laws of a jurisdiction other than that in
which Borrower is resident for tax purposes.  For purposes of this
definition, the United States, each State thereof and the District of Columbia
shall be deemed to constitute a single jurisdiction.  As an example,
if Borrower is a resident of the United States for tax purposes, a “Foreign
Lender” will be any Lender that is organized under the laws of any country,
other than the United States.

      


      “Fronting Fee” has the
meaning set forth in Section
2.11.2.

      


      “Fund” means any
Person (other than a natural person) that is (or will be) engaged in making,
purchasing, holding or otherwise investing in commercial loans and similar
extensions of credit in the ordinary course of its business.

      


      “Funds From
Operations” means, with respect to Guarantor and its consolidated
subsidiaries, net income calculated in conformity with the National Association
of Real Estate Investment Trusts in its White Paper on Funds From Operations, as
published from time to time.

      


      “GAAP” means generally
accepted accounting principles set forth from time to time in the opinions and
pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants, and statements and pronouncements of the Financial
Accounting Standards Board (or agencies with similar functions of comparable
stature and authority within the U.S. accounting profession), which are
applicable to the circumstances as of the date of determination, consistently
applied.

      


      “Governmental
Authority” means the government of the United States or any other nation,
or of any political subdivision thereof, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government (including any
supra-national bodies such as the European Union or the European Central
Bank).

      


      “Gross Asset Value”
means, at any time, the sum (without duplication) of (i) an amount equal to
EBITDA for Guarantor and its consolidated subsidiaries for the most recent four
(4) consecutive fiscal quarters for which Administrative Agent has received
financial statements (the “Measuring Period”)
(excluding any income attributable to properties bought or sold during such
Measuring Period and any income received during such Measuring Period
attributable to the Clarewood Office Building located at 22110-22120 Clarendon
Street, Woodland Hills, California, and the office buildings located at 925 and
935 East Meadow Drive, Palo Alto, California), (4) and divided by the
Capitalization Rate (expressed as a decimal); (ii) the amount of cash and
marketable securities held by Guarantor and its consolidated subsidiaries as of
the end of such Measuring Period; (iii) the aggregate acquisition cost of
properties acquired by Guarantor or any of its consolidated subsidiaries during
such Measuring Period (including Borrower’s pro rata shares of any properties
acquired by Joint Ventures, based on its Capital Interests in such Joint
Ventures); (iv) the aggregate book value of all development property as of the
end of such Measuring Period (including Borrower’s pro rata share of development
property held by Joint Ventures, based on its Capital Interests in such Joint
Ventures), as reported on Guarantor’s 10K and 10Q; (v) $4,500,000, if Borrower
owns the Clarewood Office Building located at 22110-22120 Clarendon Street,
Woodland Hills, California at such time; and (vi) $9,000,000, if Borrower owns
the office buildings located at 925 and 935 East Meadow Drive, Palo Alto,
California at such time.


      
        
           


        

        
          8

          
            

          

        

        
           


        

      


      “Guarantor” means
Essex Property Trust, Inc., a Maryland corporation operating as a real estate
investment trust.

      


      “Guaranty” means that
certain Payment Guaranty of even date herewith, executed by Guarantor and
substantially in the form of Exhibit F-l attached
hereto.

      


      “Guaranty Obligation”
means, as applied to any Person, any direct or indirect liability of that Person
with respect to any Indebtedness, lease, dividend, letter of credit or other
obligation (the “primary obligations”)
of another Person.  The amount of any Guaranty Obligation shall be
deemed equal to the stated or determinable amount of the primary obligation in
respect of which such Guaranty Obligation is made or, if not stated or if
indeterminable, the maximum reasonably anticipated liability in respect
thereof.

      


      “Hazardous Substance”
means any substance, material or waste, including asbestos and petroleum
(including crude oil or any fraction thereof), polychlorinated biphenyls, radon
gas, urea formaldehyde foam insulation, explosive or radioactive material, or
infectious or medical wastes, which is or becomes designated, classified or
regulated as “toxic,” “hazardous,” a “pollutant” or similar designation under,
or which is regulated pursuant to, any Environmental Law.

      


      “Honor Date” shall
have the meaning set forth in Section
2.5.1(a).

      


      “Indebtedness” of any
Person means, without duplication, (a) all indebtedness for borrowed money; (b)
all obligations issued, undertaken or assumed as the deferred purchase price of
property or services; (c) all reimbursement obligations with respect to surety
bonds, letters of credit and similar instruments; (d) all obligations evidenced
by notes, bonds, debentures or similar instruments, including obligations so
evidenced incurred in connection with the acquisition of property, assets or
businesses; (e) all indebtedness created or arising under any conditional sale
or other title retention agreement, or incurred as financing, in either case
with respect to property acquired by the Person (even though the rights and
remedies of the seller or lender under such agreement in the event of default
are limited to repossession or sale of such property); (f) all indebtedness
referred to in clauses (a) through (e) above secured by (or for which the holder
of such Indebtedness has an existing right, contingent or otherwise, to be
secured by) any Lien upon or in property owned by such Person, even though such
Person has not assumed or become liable for the payment of such Indebtedness;
and (g) all Guaranty Obligations in respect of indebtedness or obligations of
others of the kinds referred to in clauses (a) through (e)
above.


      
        
           


        

        
          9

          
            

          

        

        
           


        

      


      “Indemnified Taxes”
means Taxes other than Excluded Taxes.

      


      “Indemnitee” has the
meaning set forth in Section
10.4(b).

      


      “Information” has the
meaning set forth in Section
10.6.

      


      “Insolvency
Proceeding” means (a) any case, action or proceeding before any court or
other Governmental Authority relating to bankruptcy, reorganization, insolvency,
liquidation, receivership, dissolution, winding-up or relief of debtors, or (b)
any general assignment for the benefit of creditors, composition, marshaling of
assets for creditors or other similar arrangement in respect of its creditors
generally or any substantial portion of its creditors; in each case (a) and (b)
undertaken under U.S. federal, state or foreign law, including the United States
Bankruptcy Code (11 U.S.C. §101 et seq.).

      


      “Interest Payment
Date” means (a) for each Reference Rate Loan, the first day of each
calendar quarter (beginning on January 1, 2010) during the term of this
Agreement, (b) for each LIBOR Loan, the last day of the applicable Interest
Period, but not less often than every three (3) months, (c) the Maturity Date,
and (d) the date of any prepayment of any Loan made hereunder, as to the amount
prepaid.

      


      “Interest Period”
means with respect to any LIBOR Loan, the period commencing on the Business Day
the Loan is disbursed or continued or on the conversion date on which the Loan
is converted to a LIBOR Loan and ending on the date that is one, two, three or
six months thereafter, as selected by Borrower in its Notice of Borrowing or
Conversion/Continuation; provided that:

      


      (a)           if
any Interest Period pertaining to a LIBOR Loan would otherwise end on a day that
is not a Business Day, that Interest Period shall be extended to the next
succeeding Business Day unless the result of such extension would be to carry
such Interest Period into another calendar month, in which event such Interest
Period shall end on the immediately preceding Business Day; and

      


      (b)           any
Interest Period pertaining to a LIBOR Loan that begins on the last Business Day
of a calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period) shall end on the
last Business Day of the calendar month at the end of such Interest Period;
and

      


      (c)           no
Interest Period shall extend beyond the Maturity Date.

      


      “ISP” means, with
respect to any Letter of Credit, the “International Standby Practices 1998”
published by the Institute of International Banking Law & Practice (or such
later version thereof as may be in effect at the time of issuance).

      


      “Issuer Documents”
means with respect to any Letter of Credit, the Letter of Credit Application,
and any other document, agreement and instrument entered into by the L/C Issuer
and Borrower (or any subsidiary, Joint Venture or Permitted Affiliate) or in
favor the L/C Issuer and relating to any such Letter of Credit.


      
        
           


        

        
          10

          
            

          

        

        
           


        

      


      “Joint Venture” means
a Person in which Borrower has an ownership interest that is less than
100%.

      


      “Joint Venture
Investments” means the aggregate amount of Borrower’s investments (valued
in accordance with GAAP), advances and loans to Joint Ventures unconsolidated
under GAAP, excluding investments in such Joint Ventures in which Borrower’s
Capital Interest is less than 15%.

      


      “Laws” means,
collectively, all international, foreign, Federal, state and local statutes,
treaties, rules, guidelines, regulations, ordinances, codes and administrative
or judicial precedents or authorities, including the interpretation or
administration thereof by any Governmental Authority charged with the
enforcement, interpretation or administration thereof, and all applicable
administrative orders, directed duties, requests, licenses, authorizations and
permits of, and agreements with, any Governmental Authority, in each case
whether or not having the force of law.

      


      “L/C Advance” means,
with respect to each Lender, such Lender’s funding of its participation in any
L/C Borrowing in accordance with its Pro Rata Share.

      


      “L/C Borrowing” means
an extension of credit resulting from a drawing under any Letter of Credit which
has not been reimbursed on the date when made or refinanced as a
Borrowing.

      


      “L/C Issuer” means PNC
Bank in its capacity as issuer of Letters of Credit hereunder, or any successor
issuer of Letters of Credit hereunder.

      


      “L/C Obligations”
means, as at any date of determination, the aggregate undrawn amount of all
outstanding Letters of Credit plus the aggregate of
all Unreimbursed Amounts.  For purposes of computing the amount
available to be drawn under any Letter of Credit, the amount of such Letter of
Credit shall be determined in accordance with Section
1.2.4.  For all purposes of this Agreement, if on any date of
determination a Letter of Credit has expired by its terms but any amount may
still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP,
such Letter of Credit shall be deemed to be “outstanding” in the amount so
remaining available to be drawn.

      


      “Lender Reply Period”
has the meaning given to it in Section
10.2(f).

      


      “Lenders” means PNC
Bank and the several additional financial institutions from time to time a party
to this Agreement.

      


      “Lending Office”
means, as to any Lender, the office or offices of such Lender described as such
in the Administrative Questionnaire for such Lender, or such other office as
such Lender may designate to Borrower and Administrative Agent in writing from
time to time.

      


      “Letter of Credit”
means a standby letter of credit issued by PNC Bank for Borrower’s account
pursuant to Section
2.1.

      


      “Letter of Credit
Application” means an application and agreement for the issuance or
amendment of a Letter of Credit in the form from time to time in use by the L/C
Issuer.


      
        
           


        

        
          11

          
            

          

        

        
           


        

      


      “Letter of Credit Fee”
has the meaning set forth in Section
2.11.2.

      


      “Letter of Credit
Sublimit” means, at any time, the lesser of (a) $20,000,000 or (b) the
difference between (i) the Availability at such time and (ii) the sum of
the aggregate Outstanding Amount of all Loans and Swing Loans and the
Outstanding Amount of all L/C Obligations at such time.

      


      “LIBOR Base Rate” means, for any
Interest Period with respect to any LIBOR Loan, the rate per annum equal to the
rate per annum which appears on the Bloomberg Page BBAM1 (or on a substitute
Bloomberg page that displays rates at which Dollar deposits are offered by
leading banks in the London interbank deposit market), at approximately 11:00
a.m., London time, two (2) Business Days prior to the commencement of such
Interest Period, for Dollar deposits (for delivery on the first day of such
Interest Period) with a term equivalent to such Interest Period.  If
such rate is not available at such time for any reason, then the “LIBOR Base
Rate” for such Interest Period shall be the rate per annum determined by
Administrative Agent to be the rate at which deposits in Dollars for delivery on
the first day of such Interest Period in same day funds in the approximate
amount of the LIBOR Loan being made, continued or converted by Administrative
Agent and with a term equivalent to such Interest Period as would be offered by
a source selected by Administrative Agent which has been approved by the British
Bankers’ Association as an authorized information vendor for the purpose of
displaying rates at which Dollar deposits are offered by leading banks in the
London interbank deposit market at their request at approximately 11:00 a.m.
(London time) two (2) Business Days prior to the commencement of such Interest
Period.

      


      “LIBOR Borrowing”
means a Borrowing consisting of LIBOR Loans.

      


      “LIBOR Loan” means a
Loan that bears interest at a rate based upon the LIBOR Rate.

      


      “LIBOR Rate” means,
the interest rate per annum (rounded upward, if necessary, to a whole multiple
of 1/100 of 1%) determined by Administrative Agent by dividing (i) the LIBOR
Base Rate by (ii) a number equal to 1.00 minus the LIBOR Reserve
Percentage.  The LIBOR Rate may also be expressed by the following
formula:

      


      
        	
                LIBOR
      Rate =

              	
                LIBOR Base Rate

              
	 
      	
                1.00
      – LIBOR Reserve Percentage

              


      

      


      “LIBOR Reserve
Percentage” means, for any day during any Interest Period, the reserve
percentage (expressed as a decimal, carried out to five decimal places) in
effect on such day, whether or not applicable to any Lender, under regulations
issued from time to time by the FRB for determining the maximum reserve
requirement (including any emergency, supplemental or other marginal reserve
requirement) with respect to eurocurrency funding (currently referred to as
“eurocurrency liabilities”).  The LIBOR Rate for the purposes of each
outstanding LIBOR Loan, and the Daily LIBOR Rate for the purposes of each
Reference Rate Loan, shall be adjusted automatically as of the effective date of
any change in the LIBOR Reserve Percentage.

      


      “Lien” means any
mortgage, deed of trust, pledge, hypothecation, assignment, charge or deposit
arrangement, encumbrance, lien (statutory or other) or preference, priority or
other security interest or preferential arrangement of any kind or nature
whatsoever (including those created by, arising under or evidenced by any
conditional sale or other title retention agreement, the lessor’s interest under
a capital lease (determined in accordance with GAAP), any financing lease having
substantially the same economic effect as any of the foregoing, or the filing of
any financing statement under the UCC or any comparable law naming the owner of
the asset to which such lien relates as debtor) and any contingent or other
agreement to provide any of the foregoing, but not including the interest of a
lessor under an operating lease (determined in accordance with
GAAP).


      
        
           


        

        
          12

          
            

          

        

        
           


        

      


      “Loan(s)” has the
meaning set forth in Section
2.1(a)(i).

      


      “Loan Documents” means
this Agreement, the Notes, the Guaranty, each Payment Guaranty, each Issuer
Document and any other documents delivered to Administrative Agent, on behalf of
the Lenders, in connection therewith, in each case as supplemented, modified,
amended or amended and restated from time to time.

      


      “Maturity Date” means
the earlier of the following dates:  (a) the Original Maturity Date
or, if Borrower has exercised its extension option(s) pursuant to and in
accordance with Section 2.9 hereof,
the applicable Extended Maturity Date, or (b) any earlier date on which all of
the Loans shall become due, whether by acceleration, mandatory prepayment or
otherwise., provided, however, that if such date is not a Business Day, the
Maturity Date shall be the next preceding Business Day.

      


      “Maximum Commitment
Amount” means, at any time, an amount equal to $200,000,000 subject to
decrease pursuant to the provisions of Section
2.7.

      


      “Moody’s” means
Moody’s Investors Service, Inc.

      


      “Multiemployer Plan”
means any employee benefit plan of the type described in Section 4001(a)(3) of
ERISA, to which Borrower or any ERISA Affiliate makes or is obligated to make
contributions, or during the preceding five plan years, has made or been
obligated to make contributions.

      


      “Net Operating Income”
for a property means, for the relevant period, the aggregate total cash revenues
actually collected from the normal operation of such property (excluding all
security deposits until such time as the tenant or other user making such
deposit is no longer entitled to return thereof), plus amounts payable to
unrelated third parties on behalf of the owner of the property, if actually
paid, plus the proceeds of any rental or business interruption insurance
actually received by the owner of the property with respect to such property,
from which there shall be deducted all costs and expenses paid or payable by the
owner and relating to such property (other than Debt Service which is paid and
balloon payments), including (a) any charges paid in connection with the use,
ownership or operation of such property, (b) any cost of repairs and
maintenance, (c) any cost associated with the management of such property, (d)
any payroll cost and other expenses for general administration and overhead paid
in connection with the use, ownership or operation of such property, (e) current
real estate taxes, (f) any sums paid or subject to payment in the nature of a
rebate, refund or other adjustment to revenue previously collected, (g) all
assessment bond indebtedness (whether principal or interest) in respect of such
property paid or payable for the interval in question, (h) all amounts paid to
unrelated third parties on behalf of the owner of the property, and (i) any and
all costs or expenses, of whatever nature or kind, incurred in connection with
the use, ownership or operation of the property; provided, however, that such
costs and expenses paid or payable by Borrower and relating to such property
shall not include tenant improvement costs, leasing commissions or the costs and
expenses of capital improvements and capital repairs, or depreciation,
amortization or other non-cash expenses.


      
        
           


        

        
          13

          
            

          

        

        
           


        

      


      “Nominated Property”
has the meaning given to it in Section
4.1(a).

      


      “Non-Borrower
Interests” means (a) the portion of capital contributed to Borrower or
any Joint Venture by a Person other than Borrower or Guarantor; and (b) the
portion of income of Borrower or any Joint Venture that is allocated to a Person
other than Borrower or Guarantor.

      


      “Non-Recourse
Indebtedness” means, with respect to any Person, Indebtedness of that
Person with respect to which recourse to such Person for payment is
contractually limited to specific assets encumbered by a Lien securing such
Indebtedness.  Notwithstanding the foregoing, Indebtedness of any
Person shall not fail to constitute Non-Recourse Indebtedness by reason of the
inclusion in any document evidencing, governing, securing or otherwise relating
to such Indebtedness to the effect that such Person shall be liable, beyond the
assets securing such Indebtedness, for (a) misapplied moneys, including
insurance and condemnation proceeds and security deposits, (b) liabilities
(including environmental liabilities) of the holders of such Indebtedness and
their affiliates to third parties, (c) breaches of customary representations and
warranties given to the holders of such Indebtedness, (d) commission of waste
with respect to any part of the collateral securing such Indebtedness, (e)
recovery of rents, profits or other income attributable to the collateral
securing such Indebtedness collected following a default, (f) fraud, gross
negligence or willful misconduct, (g) breach of any covenants regarding
compliance with ERISA, and (h) other similar exceptions to the non-recourse
nature of the Indebtedness imposed by an institutional lender.

      


      “Notes” means,
collectively, the Revolving Notes and the Swing Line Note.

      


      “Notice of Borrowing or
Conversion/Continuation” means a notice substantially in the form of
Exhibit B given
by Borrower to Administrative Agent pursuant to Section 2.3, 2.5 or Section 2.6, as
applicable, which shall include, in the case of a request for a Letter of
Credit, a Letter of Credit Application.

      


      “O&M Plan” means
an operations and maintenance plan relating to any asbestos containing
materials.

      


      “Obligations” means
all Loans, Swing Loans, L/C Borrowings, advances, debts, liabilities,
obligations and covenants owing from Borrower, Guarantor or any Permitted
Affiliate to any Lender, Administrative Agent or any Indemnitee under any Loan
Document, whether absolute or contingent, due or to become due, now existing or
hereafter arising ,and including interest and fees that accrue after the
commencement by or against Borrower, Guarantor or any Permitted Affiliate of any
proceeding under any Insolvency Proceeding naming such Person as the debtor in
such proceeding, regardless of whether such interest and fees are allowed claims
in such proceeding.


      
        
           


        

        
          14

          
            

          

        

        
           


        

      


      “Obligor” has the
meaning set forth in Section
6.14(b).

      


      “Original Maturity
Date” shall mean the date that is twelve (12) months from the Closing
Date.

      


      “Other Taxes” means
all present or future stamp or documentary taxes or any other excise or property
taxes, charges or similar levies arising from any payment made hereunder or
under any other Loan Document or from the execution, delivery or enforcement of,
or otherwise with respect to, this Agreement or any other Loan
Document.  Other Taxes shall not include any Excluded
Taxes.

      


      “Outstanding Amount”
means(s) (a) with respect to Loans and Swing Loans on any date, the aggregate
outstanding principal amount thereof after giving effect to any borrowings and
prepayments or repayments of Loans occurring on such date; and (b) with respect
to any L/C Obligations on any date, the amount of such L/C Obligations on such
date after giving effect to the issuance, extension or increase of any Letter of
Credit occurring on such date and any other changes in the aggregate amount of
the L/C Obligations as of such date, including as a result of any reimbursements
of outstanding unpaid drawings under any Letters of Credit or any reductions in
the maximum amount available for drawing under Letters of Credit taking effect
on such date.

      


      “Participant” shall
have the meaning set forth in Section
10.5(d).

      


      “Payment Guaranty”
means a guaranty by a Permitted Affiliate of the Obligations of Borrower under
this Agreement in favor of Administrative Agent, as administrative agent for the
Lenders, substantially in the form of Exhibit F-2
hereto.

      


      “PBGC” means the
Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title
IV of ERISA or any entity succeeding to any or all of its functions under
ERISA.

      


      “Pension Plan” means
any “employee pension benefit plan” (as such term is defined in Section 3(2) of
ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA
and is sponsored or maintained by Borrower or any ERISA Affiliate or to which
Borrower or any ERISA Affiliate contributes or has an obligation to contribute,
or in the case of a multiple employer or other plan described in Section 4064(a)
of ERISA, has made contributions at any time during the immediately preceding
five plan years.

      


      “Permitted Affiliate”
means each direct or indirect wholly-owned subsidiary of Borrower or Guarantor
that owns an Unencumbered Asset Pool Property (or holds the interest in such
Unencumbered Asset Pool Property as is described in Section 4.1(a)(i)(1)
and is or becomes a party to a Payment Guaranty, including, on the Closing Date,
each entity that is listed on Schedule 1.3
hereto.  Upon removal of the Unencumbered Asset Pool Property owned by
such subsidiary from the Unencumbered Asset Pool pursuant to Section 4.1(b) or
Section 4.1(c),
and as long as such subsidiary no longer owns (or holds any interest as is
described in Section 4.1(a)(i)(l)
in) any Unencumbered Asset Pool Property included in the calculation of
Availability, such subsidiary shall no longer constitute a Permitted Affiliate
hereunder.


      
        
           


        

        
          15

          
            

          

        

        
           


        

      


      “Permitted Affiliate
Subordinated Indebtedness” means Indebtedness owing by an Obligor that is
Borrower, Guarantor or a Permitted Affiliate, to a Creditor that is Borrower,
Guarantor, a Permitted Affiliate or an Affiliate that is a consolidated
subsidiary of Guarantor, provided that such Creditor has executed an Approved
Subordination Agreement.

      


      “Permitted Liens” has
the meaning given to it in Section
4.1(a)(i)(5).

      


      “Person” means an
individual, corporation, partnership, joint venture, limited liability company,
joint stock company, business trust, unincorporated association or Governmental
Authority.

      


      “Plan” means any
“employee benefit plan” (as such term is defined in Section 3(3) of ERISA)
established by Borrower or, with respect to any such plan that is subject to
Section 412 of the Code or Title IV of ERISA, any ERISA Affiliate.

      


      “Platform” has the
meaning given to it in Section
6.3.

      


      “PNC Bank” means PNC
Bank, National Association.

      


      “Prime Rate” means the
rate of interest in effect for such day as publicly announced from time to time
by PNC Bank as its “prime rate.” The Prime Rate is determined from time to time
by PNC Bank as a means of pricing some loans to its borrowers.  The
Prime Rate is not tied to any external rate of interest or index, and does not
necessarily reflect the lowest rate of interest actually charged by PNC Bank to
any particular class or category of customers.  If and when the Prime
Rate changes, the rate of interest with respect to any obligation to which the
Prime Rate applies will change automatically without notice to Borrower,
effective on the date of any such change.

      


      “Pro Rata Share”
means, as to any Lender at any time, the percentage indicated for such Lender as
its “Pro Rata Share” on Schedule 1.1
(expressed as a decimal rounded to the ninth decimal place), as such percentage
may be adjusted from time to time to account for any assignments of a Lender’s
interest as provided in Section
10.5.

      


      “Published Rate” means
the rate of interest published each Business Day in The Wall Street Journal
“Money Rates” listing under the caption “London Interbank Offered Rates” for a
one month period (or, if no such rate is published therein for any reason, then
the Published Rate shall be the eurodollar rate for a one month period as
published in another publication determined by Administrative
Agent).

      


      “Reference Rate” means
for any day a fluctuating rate per annum equal to the highest of (a) the
Federal Funds Open Rate plus one-half of one percent (.5%), (b) the Prime Rate
and (c) the Daily LIBOR Rate plus one percent (1%).

      


      “Reference Rate
Borrowing” means a Borrowing consisting of Reference Rate
Loans.

      


      “Reference Rate Loan”
means a Loan that bears interest based on the Reference Rate.

      


      “Register” shall have
the meaning set forth in Section
10.5(c).


      
        
           


        

        
          16

          
            

          

        

        
           


        

      


      “Related Parties”
means, with respect to any Person, such Person’s Affiliates and the partners,
directors, officers, employees, agents and advisors of such Person and of such
Person’s Affiliates.

      


      “Reportable Event”
means any of the events set forth in Section 4043(c) of ERISA, other than events
for which the 30 day notice period has been waived.

      


      “Responsible Officer”
means any officer of the general partner of Borrower having the authority to
execute Loan Documents, Notices of Borrowing or Conversion/Continuation on
behalf of Borrower, as identified to Administrative Agent in a certificate
executed by the General Counsel, Principal Financial Officer, Chief Executive
Officer, Vice President-Finance or Secretary of Borrower’s general
partner.

      


      “Required Lenders”
means, as of any date of determination, the Lenders having at least 66-2/3% of
the Commitments or, if the commitment of each Lender to make Loans and the
obligation of the L/C Issuer to issue Letters of Credit have been terminated
pursuant to Section
8.2, the Lenders holding in the aggregate at least 66-2/3% of the
Outstanding Amount of all Loans plus the Outstanding Amount of all L/C
Obligations (with the aggregate amount of each Lender’s risk participation and
funded participation in L/C Obligations and Swing Loans being deemed “held” by
such Lender for purposes of this definition); provided that the
Commitment of, and the portion of the Outstanding Amount held or deemed held by,
any Defaulting Lender shall be excluded for purposes of making a determination
of Required Lenders; and provided further that if there
are fewer than three Lenders, all Lenders shall be Required
Lenders.

      


      “Requirements of Law”
means, as to any Person, any law (statutory or common), treaty, rule or
regulation, or any determination of an arbitrator or of a Governmental
Authority, in each case applicable to or binding upon such Person or any of its
property or to which such Person or any of its property is subject.

      


      “Requirements” shall
have the meaning set forth in Section
6.1.1.

      


      “Revolving Note(s)”
means each promissory note of Borrower payable to the order of a Lender,
substantially in the form of Exhibit G-l hereto,
and any amendments, supplements, modifications, renewals, replacements,
consolidations or extensions thereof, evidencing the aggregate indebtedness of
Borrower to a Lender resulting from Loans made by such Lender pursuant to this
Agreement; “Revolving
Notes” means, at any time, all of the Notes (other than the Swing Line
Note) executed by Borrower in favor of a Lender outstanding at such
time.

      


      “Second Extension
Period” means the consecutive twelve (12) month period immediately
following the expiration of the First Extension Period, as more fully set forth
in Section 2.9
hereof.

      


      “Secured Debt” means
Indebtedness that is secured by a Lien encumbering real property owned or leased
by the obligor.  Notwithstanding the foregoing, Secured Debt shall not
include any Permitted Affiliate Subordinated Indebtedness.

      


      “Secured Recourse
Debt” means all Secured Debt that is not Non-Recourse
Debt.


      
        
           


        

        
          17

          
            

          

        

        
           


        

      


      “S&P” means
Standard & Poor’s Rating Services, a division of The McGraw-Hill Companies,
Inc.

      


      “Swing Line” has the
meaning given to it in Section
2.2.1.

      


      “Swing Line
Availability” means, at any time, the lesser of (a) $20,000,000, or (b)
the difference between (i) the Availability at such time and (ii) the sum of
the aggregate Outstanding Amount of all Loans and Swing Loans and the
Outstanding Amount of all L/C Obligations outstanding at such time.

      


      “Swing Line Borrowing”
means a borrowing of a Swing Loan pursuant to Section
2.2.

      


      “Swing Line Lender”
means PNC Bank, in its capacity as the maker of Swing Loans under Section 2.2, or any
successor or replacement thereto under Sections 9.6 or 10.5(h).

      


      “Swing Line Note”
means the promissory note of Borrower payable to the order of the Swing Line
Lender, substantially in the form of Exhibit G-2 attached
hereto, to evidence the Swing Loans, and any amendments, supplements,
modifications, renewals, replacements, consolidations or extensions
thereof.

      


      “Swing Loan” and
“Swing Loans”
have the meanings given to them in Section
2.2.1.

      


      “Taxes” means all
present or future taxes, levies, imposts, duties, deductions, withholdings,
assessments, fees or other charges imposed by any Governmental Authority and
arising from any payment made hereunder or under any other Loan Document or from
the execution, delivery or enforcement of, or otherwise with respect to, this
Agreement or any other Loan Document, including any interest, additions to tax
or penalties applicable thereto.

      


      “Total Liabilities”
means, without duplication, (a) all Indebtedness of Guarantor and its
consolidated subsidiaries, including subordinated debt, capitalized leases,
purchase obligations (defined as nonrefundable deposits and non-contingent
obligations), L/C Obligations and unfunded obligations of Guarantor, Borrower or
any consolidated subsidiary reported in accordance with GAAP, (b) Borrower’s and
Guarantor’s pro rata share of non-recourse liabilities of unconsolidated Joint
Ventures, based on its Capital Interests in such Joint Ventures; and (c) all
liabilities of Affiliates that are recourse to Borrower or
Guarantor.  The term “Total Liabilities” does not include (i) that
portion of Borrower’s liabilities attributable to Non-Borrower Interests; (ii)
except as provided in “(b)” above, the Non-Recourse Indebtedness of an
Acquisition down-REIT; and (iii) any Permitted Affiliate Subordinated
Indebtedness.

      


      “Type” means, in
connection with a Loan, the characterization of such loan as a Reference Rate
Loan or a LIBOR Loan.

      


      “UCC” means the
Uniform Commercial Code as in effect in any jurisdiction, as the same may be
amended, modified or supplemented from time to time.

      


      “Unencumbered Asset
Pool” means, at any time, all of the Unencumbered Asset Pool Properties
at such time.


      
        
           


        

        
          18

          
            

          

        

        
           


        

      


      “Unencumbered Asset Pool
Property” means each Unencumbered Development Property and each
Unencumbered Stabilized Asset Property.

      


      “Unencumbered Asset Pool
Value” means, at any time, an amount equal to the sum of the Unencumbered
Development Property Value plus the Unencumbered Stabilized Asset Property
Value.

      


      “Unencumbered Development
Property” means a real property listed Exhibit A-2 and any
additional development property that satisfies all of the conditions set forth
in Section 4.1(a)(ii),
as long as either Borrower or a Permitted Affiliate holds fee simple title to
such development property or such development property is subject to a
financeable ground lease (as determined by Administrative Agent in its
reasonable discretion) in compliance with the second sentence of Section 4.1(c)
(subject to the exceptions set forth in Section 4.1(a)(i)(1)).  Such
development property shall no longer qualify as an Unencumbered Development
Property on the date that is the earlier of (i) twelve months following the date
on which Completion of Construction on such Unencumbered Development Property
has occurred, or (ii) the first fiscal quarter in which such Unencumbered
Development Property becomes a Unencumbered Stabilized Asset
Property.

      


      “Unencumbered Development
Property Value” means, at any time, for all Unencumbered Development
Property, the aggregate cost book value determined in accordance with GAAP (as
shown on the Borrower’s consolidated balance sheet).

      


      “Unencumbered
Property” means any real property that satisfied the following
conditions:

      


      (a)           such
real property is wholly owned by Borrower or any of its consolidated
subsidiaries in fee simple title, or such real property is subject to a
financeable ground lease (as determined by Administrative Agent in its
reasonable discretion) in favor of Borrower or any of its consolidated
subsidiaries, in excess of 30 years (provided that no less than 15 years shall
be remaining on such ground lease) and such real property is located within the
United States);

      


      (b)           Such
real property is either (i) operated as residential apartments, with no more
than 20% of gross revenue generated by non-residential tenants, or (ii) is real
property comprised of residential apartment projects under development, with no
more than 20% of such development to be intended for occupancy by
non-residential tenants, or in pre-construction phases of the development
process; provided that such property under development shall not qualify to be
included as a development property under this clause (ii) on the date that is
the earlier of (A) twelve months following the date that Completion of
Construction on such real property has occurred, or (B) the date that such real
property qualified as an operating residential apartment with a minimum
occupancy of 70% pursuant to the foregoing clause (i) of this paragraph (b) and
paragraph (c) below;

      


      (c)           Other
than with respect to any real property under development under clause (ii) of
paragraph (b) above, such real property shall have minimum occupancy of 70%;
and

      


      (d)           Such
real property is free of all liens, encumbrances and negative pledges, except
for: (i) liens for taxes, assessments or governmental charges or levies to the
extent that the owner of such real property is not yet required to pay the
amount secured thereby; and (ii) liens imposed by law, such as carrier’s,
warehouseman’s, mechanic’s, materialman’s and other similar liens, arising in
the ordinary course of business in respect of obligations that are not overdue
or are being actively contested in good faith by appropriate proceedings, as
long as the owner of such real property, as applicable, has established and
maintained adequate reserves for the payment of the same and, by reason of
nonpayment, such real property is not in danger of being lost or forfeited; and
(iii) easements; covenants, conditions and restrictions; reciprocal easement and
access agreements and similar agreements relating to ownership and
operation.


      
        
           


        

        
          19

          
            

          

        

        
           


        

      


      “Unencumbered Stabilized
Asset Property” means a real property listed Exhibit A-l and any
additional real property that satisfies the conditions set forth in Section 4.1(a)(i), in
each case as long as either Borrower or a Permitted Affiliate holds fee simple
title to such real property or such real property is subject to a financeable
ground lease (as determined by Administrative Agent in its reasonable
discretion) in compliance with the second sentence of Section 4.1(c),
subject to the exceptions set forth in Section 4.1(a)(i)(l)
hereof.

      


      “Unencumbered Stabilized
Asset Property Value” means, at any time, the aggregate of the values
determined for each Unencumbered Asset Property as follows:

      


      (a)           if
at such time Borrower or a Permitted Affiliate has owned such Unencumbered
Stabilized Asset Property for four or more full consecutive calendar quarters
(or, with respect to any such real property that was formerly an Unencumbered
Development Property or a development property, if such real property has
qualified as an Unencumbered Stabilized Asset Property for four or more full
consecutive calendar quarters), an amount equal to (A) its Net Operating Income
for the most recent four consecutive quarter period, less the Capital
Reserve for such period, divided by (B) the
Capitalization Rate (expressed as a decimal);

      


      (b)           if
at such time Borrower or a Permitted Affiliate has owned such Unencumbered
Stabilized Asset Property for one full calendar quarter or more but fewer than
four full consecutive calendar quarters (or, with respect to any such real
property that was formerly an Unencumbered Development Property or a development
property, if such real property has qualified as an Unencumbered Stabilized
Asset Property for one full calendar quarter or more but fewer than four full
consecutive calendar quarters), an amount equal to (i) its annualized Net
Operating Income for the number of the most recent full consecutive calendar
quarters that Borrower has owned such property (e.g., Net Operating Income for
properties owned for two full consecutive calendar quarters is annualized by
multiplying by a factor of two), less the Capital
Reserve for such period, divided by (ii) the Capitalization Rate (expressed as a
decimal); or

      


      (c)           if
at such time Borrower or a Permitted Affiliate has owned such Unencumbered
Stabilized Asset Property for less than one full calendar quarter (or, with
respect to any such real property that was formerly an Unencumbered Development
Property or a development property, if such real property has qualified as an
Unencumbered Stabilized Asset Property for less than one full calendar quarter),
an amount equal to its acquisition cost.

      


      “Unfunded Pension
Liability” means the excess of a Pension Plan’s benefit liabilities under
Section 4001(a)(16) of ERISA, over the current value of that Pension Plan’s
assets, determined in accordance with the assumptions used for funding the
Pension Plan pursuant to Section 412 of the Code for the applicable plan
year.


      
        
           


        

        
          20

          
            

          

        

        
           


        

      


      “Unreimbursed Amount”
has the meaning set forth in Section
2.5.1(a).

      


      “Unsecured Debt”
means, at any time, all Indebtedness of Borrower, Guarantor and any wholly owned
subsidiary of Borrower or Guarantor that is not Secured Debt at the end of
Guarantor’s most recent fiscal quarter, including, without limitation,
Indebtedness arising under the Loan Documents.  Notwithstanding the
foregoing, Unsecured Debt shall not include any Permitted Affiliate Subordinated
Indebtedness.

      


      Terms
capitalized in this Agreement and not defined in this Section 1 have the
meanings given to them elsewhere in this Agreement.

      


      1.2           Other Interpretive
Provisions.

      


      1.2.1        Use of Defined
Terms.  Unless
otherwise specified herein or therein, all terms defined in this Agreement shall
have the defined meanings when used in any certificate or other document made or
delivered pursuant to this Agreement.  The meaning of defined terms
shall be equally applicable to the singular and plural forms of the defined
terms.

      


      1.2.2        Certain Common
Terms.

      


      (1)           The Agreement.  The
words “hereof,” “herein,” “hereunder” and words of similar import when used in
this Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement, and section, schedule and exhibit
references are to this Agreement unless otherwise specified.

      


      (2)           Documents.  The term
“documents” includes any and all instruments, documents, agreements,
certificates, indentures, notices and other writings, however
evidenced.

      


      (3)           Meaning of Certain
Terms.  The term
“including” is not limiting and means “including without limitation.” The word
“will” shall be construed to have the same meaning and effect as the word
“shall.” The words “asset” and “property” shall be construed to have the same
meaning and effect and to refer to any and all tangible and intangible assets
and properties, including cash, securities, accounts and contract
rights.

      


      (4)           Performance.  Whenever
any performance obligation hereunder (including a payment obligation) is stated
to be due or required to be satisfied on a day other than a Business Day, such
performance shall be made or satisfied on the next succeeding Business
Day.  In the computation of periods of time from a specified date to a
later specified date (other than with respect to computation of interest owed or
accrued under this Agreement), the word “from” means “from and including” and
the words “to” and “until” each mean “to and including”.  If any
provision of this Agreement refers to any action taken or to be taken by any
Person, or which such Person is prohibited from taking, such provision shall be
interpreted to encompass any and all reasonable means, direct or indirect, of
taking or not taking such action.


      
        
           


        

        
          21

          
            

          

        

        
           


        

      


      (5)           Contracts.  Unless
otherwise expressly provided in this Agreement, references to agreements and
other contractual instruments shall be deemed to include all subsequent
amendments and other modifications thereto, but only to the extent such
amendments and other modifications are not prohibited by the terms of any Loan
Document.

      


      (6)           Laws.  References
to any statute or regulation are to be construed as including all statutory and
regulatory provisions consolidating, amending or replacing the statute or
regulation.

      


      (7)           Captions.  The
captions and headings of this Agreement are for convenience of reference only,
and shall not affect the construction of this Agreement.

      


      (8)           Independence of
Provisions.  If a
conflict exists between the terms of this Agreement and those of any other Loan
Document, this Agreement shall prevail; provided, however, that the parties
acknowledge that this Agreement and the other Loan Documents may use several
different limitations, tests or measurements to regulate the same or similar
matters, and that such limitations, tests and measurements are cumulative and
must each be performed, except as expressly stated to the contrary in this
Agreement, or unless the applicable provisions are inconsistent or cannot be
simultaneously enforced or performed.

      


      (9)           Exhibits.  All of
the exhibits attached to this Agreement are incorporated herein by this
reference.

      


      (10)         Times of Day.  Unless
otherwise specified, all references herein to times of day shall be references
to Eastern time (daylight or standard, as applicable).

      


      1.2.3        Accounting
Principles.

      


      (1)           Accounting Terms.  Unless
the context otherwise clearly requires, all accounting terms not otherwise
expressly defined herein shall be construed, and all financial computations
required under this Agreement shall be made, in accordance with GAAP,
consistently applied.

      


      (2)           Fiscal Periods.  References
herein to “fiscal year” and “fiscal quarter” refer to such fiscal periods of
Guarantor and its consolidated subsidiaries.

      


      (3)           Rounding.  Any
financial ratios required to be maintained by Borrower or Guarantor pursuant to
this Agreement or any other Loan Document shall be calculated by dividing the
appropriate component by the other component, carrying the result to one place
more than the number of places by which such ratio is expressed herein and
rounding the result up or down to the nearest number (with a rounding-up if
there is no nearest number).

      


      1.2.4        Letter of Credit
Amounts.  Unless
otherwise specified herein, the amount of a Letter of Credit at any time shall
be deemed to be the stated amount of such Letter of Credit in effect at such
time; provided,
however, that
with respect to any Letter of Credit that, by its terms or the terms of any
Issuer Document related thereto, provides for one or more automatic increases in
the stated amount thereof, the amount of such Letter of Credit shall be deemed
to be the maximum stated amount of such Letter of Credit after giving effect to
all such increases, whether or not such maximum stated amount is in effect at
such time.


      
        
           


        

        
          22

          
            

          

        

        
           


        

      


      
        	
                2.

              	
                LOAN AMOUNTS AND
      TERMS.

              


      

      


      2.1           Amount and Terms of
Commitment.

      


      (a)           Commitment.  Each
Lender severally agrees, on the terms and subject to the conditions hereinafter
set forth,

      


      (i)         
  to make loans (each such loan, a “Loan”) to Borrower
from time to time on any Business Day during the period from the Closing Date to
the Maturity Date to be used for the interim financing of acquisitions, for
general working capital, and for other purposes permitted by Borrower’s
organizational documents other than the repurchase of Guarantor’s common stock,
in an aggregate amount not to exceed such Lender’s Pro Rata Share of the
Availability, and

      


      (ii)           to
fund drawings on any Letters of Credit that the L/C Issuer issues for Borrower’s
account from time to time, in an aggregate amount not to exceed at any time
outstanding such Lender’s Pro Rata Share of the amount of such
drawing.  On the date that the L/C Issuer issues a Letter of Credit
for Borrower’s account, each Lender shall be deemed to have unconditionally and
irrevocably purchased from the L/C Issuer a pro rata risk participation in the
stated amount of such Letter of Credit, without recourse or warranty, in an
amount equal to such Lender’s Pro Rata Share of the stated amount of such Letter
of Credit.

      


      (b)           Letters of
Credit.  The L/C
Issuer agrees to issue Letters of Credit in its standard form for the account of
Borrower or any subsidiary, Joint Venture or Permitted Affiliate on any Business
Day during the period from the Closing Date to the Maturity Date, for any
purpose for which Borrower can obtain Loans under this Agreement, in an
aggregate amount not to exceed the Letter of Credit Sublimit; provided, however,
that no Letter of Credit shall have an expiry date (or shall have an “evergreen”
or other extension provision that results in a final expiry date) that is later
than 30 days prior to the then-applicable Maturity Date.

      


      (c)           Letter of Credit
Applications and Issuer Documents.  Each
Letter of Credit issued hereunder (including any supplement, modification,
amendment, renewal or extension thereof) will be issued pursuant to the L/C
Issuer’s standard form of Letter of Credit Application, substantially in the
form attached hereto as Exhibit C (as such
form may be modified by PNC Bank from time to time), which will set forth the
agreement between the account party and the L/C Issuer regarding the Letter of
Credit and drawings thereunder.  A copy of each such Letter of Credit
Application submitted to the L/C Issuer shall be simultaneously delivered to the
Administrative Agent.  Additionally, Borrower shall furnish to the L/C
Issuer and Administrative Agent such other documents and information pertaining
to such requested Letter of Credit issuance or amendment, including any Issuer
Documents, as the L/C Issuer or Administrative Agent may reasonably
require.  In the event of any conflict between the terms hereof and
the terms of any Issuer Document, the terms hereof shall control.

      


      (d)           Issuance of Letter of
Credit.  Promptly
after receipt of any Letter of Credit Application, the L/C Issuer will confirm
with Administrative Agent (by telephone or in writing) that Administrative Agent
has received a copy of such Letter of Credit Application from Borrower or
account party thereof and, if not, the L/C Issuer will provide Administrative
Agent with a copy thereof.  Unless the L/C Issuer has received written
notice from Administrative Agent or Borrower at least one Business Day prior to
the requested date of issuance or amendment of the applicable Letter of Credit,
that one or more applicable conditions contained in Section 5.2 shall not
then be satisfied, then, subject to the terms and conditions hereof, the L/C
Issuer shall, on the requested date, issue a Letter of Credit for the account of
Borrower (or the applicable subsidiary, Joint Venture or Permitted Affiliate) or
enter into the applicable amendment, as the case may be, in each case in
accordance with the L/C Issuer’s usual and customary business
practices.  Immediately upon the issuance of each Letter of Credit,
each Lender shall be deemed to, and hereby irrevocably and unconditionally
agrees to, purchase from the L/C Issuer a risk participation in such Letter of
Credit in an amount equal to the product of such Lender’s Pro Rata Share times the amount of
such Letter of Credit.


      
        
           


        

        
          23

          
            

          

        

        
           


        

      


      (e)           Drawings Constituting L/C
Borrowings.  Notwithstanding
the provisions of Section 2.5.1, any
amount drawn under a Letter of Credit shall, from and after the date on which
such drawing is made, constitute a Borrowing for all purposes under this
Agreement (including accrual and payment of interest and repayment of
principal), other than disbursement of Loan proceeds under Section 2.5, and
shall be subject to the provisions of Section
2.5.1.  Reimbursement of drawings under any Letter of Credit
issued for the account of Borrower’s subsidiary, Joint Venture or Permitted
Affiliate shall be the responsibility of, and shall create an obligation of,
Borrower and any guarantor, including Guarantor and each Permitted
Affiliate.

      


      (f)           Limited to
Availability.  Notwithstanding
any contrary provision of this Agreement, the Outstanding Amount of all Loans
and Swing Loans plus the Outstanding Amount of all L/C Obligations shall not at
any time exceed the Availability.  Within the limits of the
Availability, and subject to the other terms and conditions hereof, Borrower may
borrow under this Section 2.1 and under
Section 2.5
prior to the Maturity Date, repay pursuant to Section 2.8 and
reborrow pursuant to this Section 2.1 and
pursuant to Section
2.5 prior to the Maturity Date.

      


      (g)           Benefits of L/C
Issuer.  The L/C
Issuer shall act on behalf of the Lenders with respect to any Letters of Credit
issued by it and the documents associated therewith, and the L/C Issuer shall
have all of the benefits and immunities (i) provided to Administrative Agent in
Article 9
with respect to any acts taken or omissions suffered by the L/C Issuer in
connection with Letters of Credit issued by it or proposed to be issued by it
and Issuer Documents pertaining to such Letters of Credit as fully as if the
term “Administrative Agent” as used in Article 9 included
the L/C Issuer with respect to such acts or omissions, and (ii) as additionally
provided herein with respect to the L/C Issuer.

      


      2.1.1        No Obligation to Issue
Letters of Credit Under Certain Circumstances.  The L/C
Issuer shall not be under any obligation to issue any Letter of Credit
if:

      


      (a)           any
order, judgment or decree of any Governmental Authority or arbitrator shall by
its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter
of Credit, or any law applicable to the L/C Issuer or any request or directive
(whether or not having the force of law) from any Governmental Authority with
jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer
refrain from, the issuance of letters of credit generally or such Letter of
Credit in particular or shall impose upon the L/C Issuer with respect to such
Letter of Credit any restriction, reserve or capital requirement (for which the
L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing
Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense
which was not applicable on the Closing Date and which the L/C Issuer in good
faith deems material to it;


      
        
           


        

        
          24

          
            

          

        

        
           


        

      


      (b)           the
issuance of such Letter of Credit would violate any laws or one or more policies
of the L/C Issuer; or

      


      (c)           a
default of any Lender’s obligations to fund under Section 2.5.1(b)
exists or any Lender is at such time a Defaulting Lender hereunder, unless the
L/C Issuer has entered into satisfactory arrangements with Borrower or such
Lender to eliminate the L/C Issuer’s risk with respect to such Lender including,
without limitation, Borrower providing Cash Collateral in the amount of such
Defaulting Lender’s Pro Rata Share of the requested Letter of
Credit.

      


      Letters
of Credit shall be issued only for drawing in United States
dollars.  No Letters of Credit with automatic extension or
reinstatement provisions shall be permitted.

      


      2.1.2        Letter of Credit
Amendments.  The L/C
Issuer shall not amend any Letter of Credit if the L/C Issuer would not be
permitted at such time to issue such Letter of Credit in its amended form under
the terms hereof.

      


      2.1.3        Applicability of
ISP98.  Unless
otherwise expressly agreed by the L/C Issuer and Borrower when a Letter of
Credit is issued, the rules of the ISP shall apply to each standby Letter of
Credit.

      


      2.2           Swing Line.

      


      2.2.1        Swing Loans.  Upon
Borrower’s request, and subject to the terms and conditions of this Agreement,
the Swing Line Lender may, in its sole and absolute discretion, on and after the
Closing Date and prior to the Maturity Date, provide to Borrower a swing line
credit facility (the “Swing Line”) of up to
$20,000,000; provided that the
Swing Line Lender shall not in any event make any Loan under the Swing Line
(each a “Swing
Loan” and collectively, the “Swing Loans”) if,
after giving effect thereto, (a) the sum of the Outstanding Amount of all Loans
and Swing Loans plus the Outstanding
Amount of all L/C Obligations would exceed the Availability at such time or (b)
the aggregate principal amount of all then-outstanding Swing Loans made by the
Swing Line Lender would exceed the Swing Line Availability at such
time.  Within the limits of the Swing Line Availability, Borrower may
borrow under this Section 2.2.1 at any
time prior to the Maturity Date, repay pursuant to Sections 2.2.3 or
2.2.4 and
reborrow pursuant to this Section 2.2.1 prior
to the Maturity Date.  Notwithstanding any contrary provision of this
Section 2.2,
the Swing Line Lender shall not at any time be obligated to make any Swing
Loan.  Borrower shall not use the proceeds of any Swing Loan to
refinance any outstanding Swing Loan.

      


      2.2.2        Interest on Swing
Loans.  Notwithstanding
the provisions of Sections 2.10.1
and 2.10.2,
each Swing Loan outstanding under the Swing Line shall accrue interest at a rate
per annum equal to the interest rate applicable to a Reference Rate Loan, which
interest shall be payable in arrears on each Interest Payment Date and on the
due date for Swing Loans set forth in Section 2.2.3, and
shall be payable to Administrative Agent for the account of the Swing Line
Lender; provided that,
notwithstanding any other provision of this Agreement, each Swing Loan shall
bear interest for a minimum of one day.


      
        
           


        

        
          25

          
            

          

        

        
           


        

      


      2.2.3        Principal Payable on Swing
Loans.  Notwithstanding
the provisions of Section 2.8. the principal outstanding under the Swing Line
shall be due and payable:

      


      (a)           at
or before 2:00 p.m., on the third Business Day immediately following any date on
which a Swing Loan is made under the Swing Line; and

      


      (b)           in
any event on the Maturity Date;

      


      provided that, if no
Event of Default has occurred and remains uncured, and Borrower is permitted to
borrow under the terms of this Agreement (the Availability being determined for
such purpose without giving effect to any reduction thereof occasioned by such
Swing Loans due and payable) at the time such Swing Loans are due, then unless
Borrower notifies the Swing Line Lender that it will repay such Swing Loans on
their due date, Borrower shall be deemed to have submitted a Notice of Borrowing
or Conversion/Continuation for Reference Rate Loans in an amount necessary to
repay such Swing Loans on their due date, and the provisions of Section 2.3
concerning (i) the minimum principal amounts required for Borrowings and (ii)
the funding of requested Borrowings as Swing Loans shall not apply to Loans made
pursuant to this Section
2.2.3.

      


      2.2.4        Prepayments of Swing
Loans.  Notwithstanding
the provisions of Section 2.8.1,
Borrower may, from time to time on any Business Day, make a voluntary
prepayment, in whole or in part, of the outstanding principal amount of any
Swing Loans, without incurring any premium or penalty; provided
that:

      


      (a)           each
such voluntary prepayment shall require prior written notice given to
Administrative Agent and Swing Line Lender no later than 1:00 p.m. on the day on
which Borrower intends to make a voluntary prepayment, and

      


      (b)           each
such voluntary prepayment shall be in a minimum amount of $500,000 (or, if less,
the aggregate outstanding principal amount of all Swing Loans then
outstanding).

      


      2.2.5        Funding of
Participations.  Immediately
upon the making of a Swing Loan, each Lender shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from the Swing Line Lender a
risk participation in such Swing Loan in an amount equal to the product of such
Lender’s Pro Rata Share times the amount of
such Swing Loan.  The Swing Line Lender shall be responsible for
invoicing Borrower for interest on the Swing Loans.  Until each Bank
funds its Reference Rate Loan or risk participation pursuant to this Section 2.2.5 to
refinance such Bank’s Pro Rata Share of any Swing Loan, interest in respect of
such Pro Rata Share shall be solely for the account of the Swing Line
Lender.  From and after the date that any Lender funds such
participation pursuant to this Section 2.2.5, such
Lender shall, to the extent of its Pro Rata Share, be entitled to receive a
ratable portion of any payment of principal and/or interest received by the
Swing Line Lender on account of such Swing Loans, payable to such Lender
promptly upon such receipt.  If any payment received by the Swing Line
Lender in respect of principal or interest on any Swing Loan is required to be
returned by the Swing Line Lender under any of the circumstances described in
Section 10.9
(including pursuant to any settlement entered into by the Swing Line Lender in
its discretion), each Lender shall pay to the Swing Line Lender its Pro Rata
Share thereof on demand of Administrative Agent, plus interest thereon from the
date of such demand to the date such amount is returned, at a rate per annum
equal to the Reference Rate.  Administrative Agent will make such
demand upon the request of the Swing Line Lender.  The foregoing
procedures for purchases of risk participations and the funding by Lenders of
their participations in Swing Loans hereunder shall not delay the funding of any
Swing Loan advanced to Borrower under Section 2.2.1
hereof.


      
        
           


        

        
          26

          
            

          

        

        
           


        

      


      2.2.6        Refinancing of Swing
Loans.

      


      (a)           The
Swing Line Lender at any time in its sole and absolute discretion may request,
on behalf of Borrower (which hereby irrevocably authorizes the Swing Line Lender
to so request on its behalf), that each Lender make a Reference Rate Loan in an
amount equal to such Lender’s Pro Rata Share of the amount of Swing Loans then
outstanding.  Such request shall be made in writing (which written
request shall be deemed to be a Notice of Borrowing or Conversion/Continuation
issued under Section
2.3 for purposes hereof) and in accordance with the requirements of Section 2.3, without
regard to the minimum and multiples specified therein for the principal amount
of Reference Rate Loans, but subject to the unutilized portion of the
Commitments and the conditions set forth in Section
5.2.  The Swing Line Lender shall furnish Borrower with a copy
of the applicable Notice of Borrowing or Conversion/Continuation promptly after
delivering such Notice of Borrowing or Conversion/Continuation to Administrative
Agent.  Each Lender shall make an amount equal to its Pro Rata Share
of the amount specified in such Notice of Borrowing or Conversion/Continuation
available to Administrative Agent in immediately available funds for the account
of the Swing Line Lender at Administrative Agent’s Office not later than 2:00
p.m. on the day specified in such Notice of Borrowing or
Conversion/Continuation.  Subject to Section 2.2.6(b),
each Lender that so makes funds available shall be deemed to have made a
Reference Rate Loan to Borrower in such amount.  Administrative Agent
shall remit the funds so received to the Swing Line
Lender.  Notwithstanding the foregoing, the issuance of a Notice of
Borrowing or Conversion/Continuation by the Swing Line Lender under this Section 2.2.6(a)
shall not delay the funding of any Swing Loan advanced to Borrower under Section 2.2.1
hereof.

      


      (b)           If
for any reason any Swing Loan cannot be refinanced by a Borrowing in accordance
with Section
2.2.6(a), the request for Reference Rate Loans submitted by the Swing
Line Lender as set forth herein shall be deemed to be a request by the Swing
Line Lender that each of the Lenders fund its risk participation in the relevant
Swing Loan and each Lender’s payment to Administrative Agent for the account of
the Swing Line Lender pursuant to Section 2.2.6(a)
shall be deemed payment in respect of such participation.

      


      (c)           If
any Lender fails to make available to Administrative Agent for the account of
the Swing Line Lender any amount required to be paid by such Lender pursuant to
the foregoing provisions of this Section 2.2.6 by the
time specified in Section 2.2.6(a), the
Swing Line Lender shall be entitled to recover from such Lender (acting through
Administrative Agent), on demand, such amount with interest thereon for the
period from the date such payment is required to the date on which such payment
is immediately available to the Swing Line Lender at a rate per annum equal to
the Federal Funds Rate from time to time in effect.  A certificate of
the Swing Line Lender submitted to any Lender (through Administrative Agent)
with respect to any amounts owing under this Section 2.2.6(c)
shall be conclusive absent manifest error.


      
        
           


        

        
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      (d)           Each
Lender’s obligation to make Loans or to purchase and fund risk participations in
Swing Loans pursuant to this Section 2.2.6 shall
be absolute and unconditional and shall not be affected by any circumstance,
including (i) any set-off, counterclaim, recoupment, defense or other right
which such Lender may have against the Swing Line Lender, Borrower or any other
Person for any reason whatsoever, (ii) subject to Section 2.2.8,
the occurrence or continuance of a Default, or (iii) any other occurrence, event
or condition, whether or not similar to any of the foregoing; provided, however, that each
Lender’s obligation to make Loans pursuant to this Section 2.2.6 is
subject to the conditions set forth in Section
5.2.  No such funding of risk participations shall relieve or
otherwise impair the obligation of Borrower to repay Swing Loans, together with
interest as provided herein.

      


      2.2.7        Termination of Swing
Line.  At any
time during the continuance of an Event of Default, the Swing Line Lender may,
without Borrower’s consent, upon one Business Day’s notice to Borrower,
terminate the Swing Line and cause Reference Rate Loans to be made by the
Lenders in an aggregate amount equal to the amount of principal and interest
outstanding under the Swing Line (the Availability being determined for such
purpose without giving effect to any reduction thereof occasioned by such Swing
Loans), and the conditions precedent set forth in Section 2.3 and Section 5.2, and any
requirement of Section
2.3 that a Borrowing be funded as a Swing Loan shall not apply to such
Loans.  The proceeds of such Loans shall be paid to the Swing Line
Lender to retire the outstanding principal and interest owing under the Swing
Line.

      


      2.2.8        No Swing Loans Upon
Default.  The
Swing Line Lender shall not, without the approval of all Lenders, make a Swing
Loan if the Swing Line Lender then has actual knowledge that a Default has
occurred and is continuing.

      


      2.3           Procedure for Obtaining
Credit (Loans, Swing Loans and Letters of Credit).  Each
Borrowing shall be made and each Letter of Credit shall be issued upon the
irrevocable written notice (including notice via facsimile confirmed immediately
by a telephone call) of Borrower in the form of a Notice of Borrowing or
Conversion/ Continuation and, with respect to a Letter of Credit request, a
Letter of Credit Application (which notice and, if applicable, Letter of Credit
Application, must be received by Administrative Agent prior to 1:00 p.m., (i)
three Business Days prior to the requested borrowing date, in the case of LIBOR
Loans, or (ii) one Business Day prior to the requested borrowing date, in the
case of Reference Rate Loans, or (iii) on the requested borrowing date, in the
case of Swing Loans, or (iv) five Business Days prior to the requested issuance
date of a Letter of Credit), specifying:

      


      (a)           the
amount of the Borrowing or the Letter of Credit, which in the case of a
Borrowing shall be in an aggregate principal amount of not less than
(i) $500,000 (or the remaining Availability, if less) for Reference Rate
Borrowings or Swing Loans, and (ii) $1,000,000 and increments of $500,000 in
excess thereof for any LIBOR Borrowings;


      
        
           


        

        
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      (b)           the
requested Borrowing or Letter of Credit issuance date, which shall be a Business
Day;

      


      (c)           in
the case of a Borrowing, the Type of Loans comprising the
Borrowing;

      


      (d)           in
the case of a LIBOR Borrowing, the duration of the Interest Period applicable to
the Loans comprising such LIBOR Borrowing.  If the Notice of Borrowing
or Conversion/Continuation fails to specify the duration of the Interest Period
for the Loans comprising a LIBOR Borrowing, such Interest Period shall be one
month.

      


      Unless
the Required Lenders otherwise agree, during the existence of a Default or Event
of Default, Borrower may not elect to have a Loan made as, or converted into or
continued as, a LIBOR Loan.  Notwithstanding the foregoing provisions
of this Section
2.3, any amount drawn under a Letter of Credit shall, from and after the
date on which such drawing is made, constitute a Borrowing for all purposes
under this Agreement (including accrual and payment of interest and repayment of
principal) other than disbursement of Loan proceeds under this Section
2.3.  After giving effect to any Loan, there shall not be more
than seven (7) different Interest Periods in effect.

      


      In the
event a requested Borrowing constitutes a LIBOR Borrowing or a Reference Rate
Borrowing, Administrative Agent shall provide each Lender with the Notice of
Borrowing or Conversion/Continuation relating thereto on the date that
Administrative Agent receives such Notice of Borrowing or
Conversion/Continuation (as applicable) from Borrower, together with the amount
of such Lender’s Pro Rata Share of the amount of the Loans to be funded with
such Borrowing.  Each Lender shall make the amount specified by
Administrative Agent in such notice to such Lender available to Administrative
Agent in immediately available funds for the account of Administrative Agent at
Administrative Agent’s Office not later than 2:00 p.m. on the day specified in
such Notice of Borrowing or Conversion/Continuation.

      


      2.4           Loan Accounts;
Notes.

      


      2.4.1        Loan Accounts.  The
Loans made by each Lender shall be evidenced by one or more loan accounts or
records maintained by such Lender and by Administrative Agent in the ordinary
course of business.  The loan accounts or records maintained by
Administrative Agent and each Lender shall, absent manifest error, be conclusive
of the amounts of the Loans made by the Lenders to Borrower and the interest and
payments thereon.  Any failure so to record or any error in doing so
shall not, however, limit or otherwise affect Borrower’s obligations hereunder
to pay any amount owing with respect to the Loans.  In addition to the
accounts and records referred to above, each Lender and Administrative Agent
shall maintain in accordance with its usual practice accounts or records
evidencing the purchases and sales by such Lender of participations in Letters
of Credit and Swing Loans.  In the event of any conflict between the
accounts and records maintained by Administrative Agent and the accounts and
records of any Lender in respect of such matters, the accounts and records of
Administrative Agent shall control in the absence of manifest
error.

      


      2.4.2        Notes.  The
Loans made by each Lender shall be evidenced by a Revolving Note in the form of
Exhibit G-l
hereto, payable to the order of such Lender in an amount equal to such Lender’s
Pro Rata Share of the Maximum Commitment Amount on the Closing
Date.  In addition, the Swing Loans made by the Swing Line Lender may
be evidenced by a Swing Line Note in the form of Exhibit G-2 hereto,
payable to the order of the Swing Line Lender in the maximum amount of
$20,000,000.  Each Lender may endorse on any schedule annexed to its
Note(s) the date, amount and maturity of each Loan that it makes (which shall
not include undrawn amounts on outstanding Letters of Credit, but shall include
the amounts of any drawings on outstanding Letters of Credit), and the amount of
each payment of principal that Borrower makes with respect
thereto.  Borrower irrevocably authorizes each Lender to endorse its
Note(s), and such Lender’s record shall be conclusive absent manifest error;
provided,
however, that any Lender’s failure to make, or its error in making, a notation
thereon with respect to any Loan shall not limit or otherwise affect Borrower’s
obligations to such Lender hereunder or under its Note(s).


      
        
           


        

        
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      2.5           Letters of
Credit.

      


      2.5.1        Letter of Credit Drawings
and Reimbursements; Funding of Participations.

      


      (a)           Upon
receipt from the beneficiary of any Letter of Credit of any notice of a drawing
under such Letter of Credit, the L/C Issuer shall notify Borrower and
Administrative Agent thereof.  Not later than 11:00 a.m. on the date
of any payment by the L/C Issuer under a Letter of Credit (each such date, an
“Honor Date”),
Borrower shall reimburse the L/C Issuer through Administrative Agent in an
amount equal to the amount of such drawing.  If Borrower fails to so
reimburse the L/C Issuer by such time, Administrative Agent shall promptly
notify each Lender of the Honor Date, the amount of the unreimbursed drawing
(the “Unreimbursed
Amount”), and the amount of such Lender’s Pro Rata Share
thereof.  In such event, Borrower shall be deemed to have requested a
Borrowing of Reference Rate Loans to be disbursed on the Honor Date in an amount
equal to the Unreimbursed Amount, without regard to the minimum and multiples
specified in Section
2.3 for the principal amount of Reference Rate Loans, but subject to the
amount of the unutilized portion of the Commitments and the conditions set forth
in Section 5.2
(other than the delivery of a Notice of Borrowing or
Conversion/Continuation).  Any notice given by the L/C Issuer or
Administrative Agent pursuant to this Section 2.5.1(a) may
be given by telephone if immediately confirmed in writing; provided that the
lack of such an immediate confirmation shall not affect the conclusiveness or
binding effect of such notice.

      


      (b)           Each
Lender shall upon any notice pursuant to Section 2.5.1(a) make
funds available to Administrative Agent for the account of the L/C Issuer, at
Administrative Agent’s Office in an amount equal to its Pro Rata Share of the
Unreimbursed Amount not later than 2:00 p.m. on the Business Day specified in
such notice by Administrative Agent, whereupon, subject to the provisions of
Section
2.5.1(c), each Lender that so makes funds available shall be deemed to
have made a Reference Rate Loan to Borrower in such
amount.  Administrative Agent shall remit the funds so received to the
L/C Issuer.

      


      (c)           With
respect to any Unreimbursed Amount that is not fully refinanced by a Borrowing
of Reference Rate Loans because the conditions set forth in Section 5.2 cannot be
satisfied or for any other reason, Borrower shall be deemed to have incurred
from the L/C Issuer, an L/C Borrowing in the amount of the Unreimbursed Amount
that is not so refinanced, which L/C Borrowing shall be due and payable on
demand (together with interest) and shall bear interest at the rate set forth in
Section
2.10.3.  In such event, each Lender’s payment to Administrative
Agent for the account of the L/C Issuer pursuant to Section 2.5.1(b)
shall be deemed payment in respect of its participation in such L/C Borrowing
and shall constitute an L/C Advance from such Lender in satisfaction of its
participation obligation under this Section
2.5.1.


      
        
           


        

        
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      (d)           Until
each Lender funds its Loan or L/C Advance pursuant to this Section 2.5.1 to
reimburse the L/C Issuer for any amount drawn under any Letter of Credit,
interest in respect of such Lender’s Pro Rata Share of such amount shall be
solely for the account of the L/C Issuer.

      


      (e)           Each
Lender’s obligation to make Loans or L/C Advances to reimburse the L/C Issuer,
for amounts drawn under Letters of Credit, as contemplated by this Section 2.5.1, shall
be absolute and unconditional and shall not be affected by any circumstance,
including (i) any set-off, counterclaim, recoupment, defense or other right
which such Lender may have against the L/C Issuer, Borrower or any other Person
for any reason whatsoever; (ii) the occurrence or continuance of a Default, or
(iii) any other occurrence, event or condition, whether or not similar to any of
the foregoing; provided, however, that each
Lender’s obligation to make Loans pursuant to this Section 2.5.1 is
subject to the conditions set forth in Section 5.2 (other
than delivery by Borrower of a Notice of Borrowing or
Conversion/Continuation).  No such making of an L/C Advance shall
relieve or otherwise impair the obligation of Borrower to reimburse the L/C
Issuer for the amount of any payment made by the L/C Issuer under any Letter of
Credit, together with interest as provided herein.

      


      (f)          
 If any Lender fails to make available to Administrative Agent for the
account of the L/C Issuer any amount required to be paid by such Lender pursuant
to the foregoing provisions of this Section 2.5.1 by the
time specified in Section 2.5.1(b), the
L/C Issuer, shall be entitled to recover from such Lender (acting through
Administrative Agent), on demand, such amount with interest thereon for the
period from the date such payment is required to the date on which such payment
is immediately available to the L/C Issuer at a rate per annum equal to the
Federal Funds Rate from time to time in effect.  A certificate of the
L/C Issuer submitted to any Lender (through Administrative Agent) with respect
to any amounts owing under this Section 2.5.1(f)
shall be conclusive absent manifest error.

      


      2.5.2        Repayment of
Participations.

      


      (a)           At
any time after the L/C Issuer has made a payment under any Letter of Credit and
has received from any Lender such Lender’s L/C Advance in respect of such
payment in accordance with Section 2.5.1, if
Administrative Agent receives for the account of the L/C Issuer any payment in
respect of the related Unreimbursed Amount or interest thereon (whether directly
from Borrower or otherwise, including proceeds of Cash Collateral applied
thereto by Administrative Agent), Administrative Agent will distribute to such
Lender its Pro Rata Share thereof (appropriately adjusted, in the case of
interest payments, to reflect the period of time during which such Lender’s L/C
Advance was outstanding) in the same funds as those received by Administrative
Agent.

      


      (b)           If
any payment received by Administrative Agent for the account of the L/C Issuer
pursuant to Section
2.5.1(a) is required to be returned under any of the circumstances
described in Section
10.9 (including pursuant to any settlement entered into by the L/C
Issuer, in its discretion), each Lender shall pay to Administrative Agent for
the account of the L/C Issuer its Pro Rata Share thereof on demand of
Administrative Agent, plus interest thereon from the date of such demand to the
date such amount is returned by such Lender, at a rate per annum equal to the
Federal Funds Rate from time to time in effect.


      
        
           


        

        
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      2.5.3        Obligations
Absolute.  The
obligation of Borrower to reimburse the L/C Issuer, for each drawing under each
Letter of Credit and to repay each L/C Borrowing shall be absolute,
unconditional and irrevocable, and shall be paid strictly in accordance with the
terms of this Agreement under all circumstances, including the
following:

      


      (a)           any
lack of validity or enforceability of such Letter of Credit, this Agreement, or
any other Loan Document;

      


      (b)           the
existence of any claim, counterclaim, set-off, defense or other right that
Borrower or any subsidiary, Joint Venture or Permitted Affiliate may have at any
time against any beneficiary or any transferee of such Letter of Credit (or any
Person for whom any such beneficiary or any such transferee may be acting), the
L/C Issuer, or any other Person, whether in connection with this Agreement, the
transactions contemplated hereby or by such Letter of Credit or any agreement or
instrument relating thereto, or any unrelated transaction;

      


      (c)           any
draft, demand, certificate or other document presented under such Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any respect
or any statement therein being untrue or inaccurate in any respect; or any loss
or delay in the transmission or otherwise of any document required in order to
make a drawing under such Letter of Credit;

      


      (d)           any
payment by the L/C Issuer under such Letter of Credit against presentation of a
draft or certificate that does not strictly comply with the terms of such Letter
of Credit; or any payment made by the L/C Issuer under such Letter of Credit to
any Person purporting to be a trustee in bankruptcy, debtor-in-possession,
assignee for the benefit of creditors, liquidator, receiver or other
representative of or successor to any beneficiary or any transferee of such
Letter of Credit, including any arising in connection with any proceeding under
any insolvency or bankruptcy law; or

      


      (e)           any
other circumstance or happening whatsoever, whether or not similar to any of the
foregoing, including any other circumstance that might otherwise constitute a
defense available to, or a discharge of, Borrower or any subsidiary, Joint
Venture or Permitted Affiliate.

      


      Borrower
shall promptly examine a copy of each Letter of Credit and each amendment
thereto that is delivered to it and, in the event of any claim of noncompliance
with Borrower’s instructions or other irregularity, Borrower will promptly
notify the L/C Issuer.  Borrower shall be conclusively deemed to have
waived any such claim against the L/C Issuer and its correspondents unless such
notice is given as aforesaid.

      


      2.5.4        Role of Letter of Credit
Issuer.  Each
Lender and Borrower agree that, in paying any drawing under a Letter of Credit,
the L/C Issuer shall not have any responsibility to obtain any document (other
than any sight draft, certificates and documents expressly required by the
Letter of Credit) or to ascertain or inquire as to the validity or accuracy of
any such document or the authority of the Person executing or delivering any
such document.  None of the L/C Issuer, Administrative Agent or any of
their respective Related Parties nor any of the respective correspondents,
participants or assignees of the L/C Issuer shall be liable to any Lender for
(a) any action taken or omitted in connection herewith at the request or with
the approval of the Lenders or the Requisite Lenders, as applicable; (b) any
action taken or omitted in the absence of gross negligence or willful
misconduct; or (c) the due execution, effectiveness, validity or enforceability
of any document or instrument related to any Letter of Credit or Issuer
Document.  Borrower hereby assumes all risks of the acts or omissions
of any beneficiary or transferee with respect to its use of any Letter of
Credit; provided, however, that this
assumption is not intended to, and shall not, preclude Borrower’s pursuing such
rights and remedies as it may have against the beneficiary or transferee at law
or under any other agreement.  None of the L/C Issuer, Administrative
Agent or any of their respective Related Parties, nor any of the respective
correspondents, participants or assignees of the L/C Issuer, shall be liable or
responsible for any of the matters described in clauses (a) through (e) of Section
2.5.3.  In furtherance and not in limitation of the foregoing,
the L/C Issuer may accept documents that appear on their face to be in order,
without responsibility for further investigation, regardless of any notice or
information to the contrary, and the L/C Issuer shall not be responsible for the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason.  Notwithstanding anything to
the contrary in Section 2.5.3 or in
this Section
2.5.4, Borrower or any subsidiary, Joint Venture or Permitted Affiliate
for whose benefit a Letter of Credit was issued may have a claim against the L/C
Issuer, and the L/C Issuer may be liable to Borrower or such subsidiary, Joint
Venture or Permitted Affiliate, to the extent, but only to the extent, of any
direct, as opposed to consequential or exemplary, damages suffered by Borrower
or such subsidiary, Joint Venture or Permitted Affiliate which Borrower or such
subsidiary, Joint Venture or Permitted Affiliate proves were caused by the
willful misconduct or gross negligence of the L/C Issuer or the willful failure
of the L/C Issuer to pay under any Letter of Credit after the presentation to it
by the beneficiary of a sight draft and certificate(s) strictly complying with
the terms and conditions of a Letter of Credit.


      
        
           


        

        
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      2.5.5        Cash Collateral.  Upon the
request of Administrative Agent, (a) if the L/C Issuer has honored any full or
partial drawing request under any Letter of Credit and such drawing has resulted
in an L/C Borrowing, or (b) if, as of the Letter of Credit expiration date, any
Letter of Credit for any reason remains outstanding and partially or wholly
undrawn, Borrower shall immediately Cash Collateralize the aggregate undrawn
amount of all outstanding Letters of Credit plus the aggregate of all
Unreimbursed Amounts (determined as of the date of such L/C Borrowing or the
Letter of Credit expiration date, as the case may be).  Sections 
2.8.2(a) and 8.2 .3 set forth
certain additional requirements to deliver Cash Collateral
hereunder.  “Cash Collateralize”
means to pledge and deposit with or deliver to Administrative Agent, for the
benefit of the L/C Issuer and the Lenders, as collateral for the L/C
Obligations, cash or deposit account balances pursuant to documentation in form
and substance reasonably satisfactory to Administrative Agent and the L/C Issuer
(which documents are hereby consented to by the Lenders).  Borrower
hereby grants to Administrative Agent, for the benefit of the L/C Issuer and the
Lenders, a security interest in all such cash, deposit accounts and all balances
therein and all proceeds of the foregoing.  Cash Collateral shall be
maintained in blocked, non-interest bearing deposit accounts at Administrative
Agent.


      
        
           


        

        
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      2.6           Conversion and Continuation
Elections of Loans.

      


      2.6.1        Election to Convert and
Renew.  Borrower
may, upon irrevocable written notice to Administrative Agent in accordance with
Section
2.6.2:

      


      (a)           elect
to convert, on any Business Day, any Reference Rate Loans (or any part thereof
in an amount not less than $1,000,000 and increments of $500,000 in excess
thereof) into LIBOR Loans;

      


      (b)           elect
to convert on the last day of any Interest Period any LIBOR Loans maturing on
such date (or any part thereof in an amount not less than $500,000) into
Reference Rate Loans; or

      


      (c)           elect
to renew on the last day of any Interest Period (for a new Interest Period that
commences immediately upon the expiration of such existing Interest Period) any
LIBOR Loans maturing on such date (or any part thereof in an amount not less
than $1,000,000 and increments of $500,000 in excess thereof);

      


      provided,
that if the aggregate amount of LIBOR Loans in respect of any Borrowing shall
have been reduced, by payment, prepayment or conversion of part thereof, to less
than $1,000,000, such LIBOR Loans shall automatically convert into Reference
Rate Loans, and on and after such date the right of Borrower to continue such
Loans as, and convert such Loans into, LIBOR Loans shall terminate.

      


      2.6.2        Notice of
Conversion/Continuation.  Borrower
shall deliver in writing (including via facsimile confirmed immediately by a
telephone call) a Notice of Borrowing or Conversion/Continuation (which notice
must be received by Administrative Agent not later than 1:00 p.m., (i) at least
three Business Days prior to the conversion date or continuation date, if the
Loans are to be converted into or continued as LIBOR Loans, or (ii) on the
conversion date, if the Loans are to be converted into Reference Rate Loans)
specifying:

      


      (a)           the
proposed conversion date or continuation date;

      


      (b)           the
aggregate amount of Loans to be converted or continued;

      


      (c)           the
nature of the proposed conversion or continuation; and

      


      (d)           if
Borrower elects to convert a Reference Rate Loan into a LIBOR Loan or elects to
continue a LIBOR Loan, the duration of the Interest Period applicable to such
Loan.  If the Notice of Borrowing or Conversion/Continuation fails to
specify the duration of the Interest Period for a LIBOR Loan, such Interest
Period shall be one month.

      


      2.6.3        Failure to Select a New
Interest Period.  If upon
the expiration of any Interest Period applicable to LIBOR Loans Borrower has
failed to select a new Interest Period to be applicable to LIBOR Loans, or if
any Default or Event of Default shall then exist, Borrower shall be deemed to
have elected to convert LIBOR Loans into Reference Rate Loans effective as of
the expiration date of such current Interest Period.


      
        
           


        

        
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      2.6.4        Number of Interest
Periods.  Notwithstanding
any other provision of this Agreement, after giving effect to any conversion or
continuation of any Loans, there shall not be more than seven (7) different
Interest Periods in effect for the Loans.

      


      2.7           Voluntary Termination or
Reduction of Commitment.  Borrower
may, upon not less than five Business Days’ prior written notice to
Administrative Agent, terminate the Lenders’ Commitment to make Loans to
Borrower or issue Letters of Credit for Borrower’s account, or permanently
reduce the Maximum Commitment Amount by a minimum amount of $5,000,000, unless,
after giving effect thereto and to any prepayments of Loans made on the
effective date thereof, the sum of the aggregate principal amount of (i) the
Outstanding Amount of the Loans and Swing Loans and (ii) the Outstanding Amount
of L/C Obligations would exceed the Availability.  Once reduced in
accordance with this Section 2.7, the
Maximum Commitment Amount may not be increased.  Any reduction of the
Commitment amounts shall be applied to each Lender according to its Pro Rata
Share.  No commitment or extension fees paid prior to the effective
date of any reduction of the Maximum Commitment Amount or termination of the
Lenders’ and Swing Line Lender’s commitment(s) to make Loans or Swing Loans to
Borrower or issue Letters of Credit for Borrower’s account shall be refunded,
and all accrued Facility Fee for the period up to but not including the
effective date of any reduction or termination of the Commitments shall be
payable on the effective date of such reduction or termination.

      


      2.8           Principal
Payments.

      


      2.8.1        Optional Prepayments of the
Loans.  Subject
to the provisions of Section 3.4, Borrower
may, at any time or from time to time, upon at least one Business Day’s prior
written notice to Administrative Agent with respect to any Reference Rate Loan,
or upon at least three Business Day’s prior written notice to Administrative
Agent with respect to any LIBOR Loan, ratably prepay Loans in full or in part in
an amount not less than $500,000 for Reference Rate Loans (or, if less, the
aggregate outstanding principal amount of all Reference Rate Loans and/or Swing
Loans) or $1,000,000 for LIBOR Loans.  Such notice of prepayment shall
specify the date and amount of such prepayment and the Type(s) of Loans to be
prepaid.  Administrative Agent will promptly notify each Lender of its
receipt of any such notice and such Lender’s Pro Rata Share of such
prepayment.  If Borrower gives a prepayment notice to Administrative
Agent, such notice is irrevocable and the prepayment amount specified in such
notice shall be due and payable on the date specified therein, together with
accrued interest to such date on the amount prepaid in the case of a prepayment
of LIBOR Loans, and all amounts required to be paid pursuant to Section
3.4.

      


      2.8.2        Mandatory
Repayments.

      


      (a)           Availability
Limit.  Should the Outstanding Amount of Loans and Swing Loans
plus the Outstanding Amount of L/C Obligations at any time exceed the
Availability, Borrower shall immediately repay such excess to Administrative
Agent, for the account of the Lenders and/or deliver to Administrative Agent
Cash Collateral pursuant to Section 2.5.5 hereof,
in the amount of the excess of the outstanding but undrawn Letters of Credit
over the Availability.


      
        
           


        

        
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      (b)           Application of
Repayments.  Any repayments pursuant to this Section 2.8.2
shall be (i) subject to Section 3.4, and (ii)
applied first, to any Reference Rate Loans then outstanding and second, to the
LIBOR Loans (in order of the shortest Interest Periods remaining).

      


      2.8.3        Repayment at
Maturity.  Borrower
shall repay the principal amount of all outstanding Loans on the Maturity Date
or, if earlier, upon termination of the Lenders’ Commitments pursuant to Section
2.7.

      


      2.9           Extension of Maturity
Date.  Upon
Borrower’s written request, delivered to Administrative Agent at least 60 days
and not more than 90 days prior to the then-scheduled Maturity Date, Borrower
shall have the right to extend the Original Maturity Date for the First
Extension Period and, if the extension option for the First Extension Period has
been duly exercised, the right to further extend the date the Loans mature for
the Second Extension Period, provided
that:

      


      (a)           No
Default or Event of Default shall have occurred and remain uncured on the
applicable Maturity Date, and Administrative Agent shall have received a
certificate to that effect signed by a Responsible Officer of
Borrower;

      


      (b)           The
representations and warranties set forth in this Agreement and the other Loan
Documents shall be correct as of the applicable Maturity Date as though made on
and as of that date, and Administrative Agent shall have received a certificate
to that effect signed by a Responsible Officer of Borrower;

      


      (c)           Borrower
shall have paid to Administrative Agent, for the account of the Lenders, an
extension fee equal to (i) twenty five basis points (0.25%) multiplied by the
Maximum Commitment Amount on the Original Maturity Date (with respect to the
First Extension Period), and (ii) twenty basis points (0.20%) multiplied by the
Maximum Commitment Amount on the last day of the First Extension Period (with
respect to the Second Extension Period).  The Extension Fee shall be
determined as of the date Borrower provides the extension notice for the
applicable Extension Period and shall be paid by Borrower on the first day of
such Extension Period; and

      


      (d)           Borrower
shall have executed, acknowledged and delivered to Administrative Agent such
documents as Administrative Agent reasonably determines to be necessary to
evidence the extension of the Maturity Date.

      


      2.10         Interest.

      


      2.10.1      Accrual Rate.  Subject
to the provisions of Section 2.10.3, (i)
each Loan shall bear interest on the outstanding principal amount thereof from
the date when made (which, in the case of a drawing on a Letter of Credit, is
the date of such drawing) until it becomes due at a rate per annum equal to (A)
with respect to a LIBOR Loan, the LIBOR Rate plus the Applicable LIBOR
Margin, and (B) with respect to a Reference Rate Loan, the Reference Rate plus the Applicable Reference
Rate Margin; and (ii) each Swing Loan shall bear interest on the outstanding
principal amount thereof from the applicable borrowing date at the rate set
forth in Section
2.2.2 hereof.


      
        
           


        

        
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      2.10.2      Payment.  Interest
on each Loan shall be payable in arrears on each Interest Payment
Date.  Interest shall also be payable on the date of any repayment of
Loans pursuant to Section 2.8 for the
portion of the Loans so repaid, if required by Section 2.9, and upon
payment (including prepayment) of the Loans in full.  During the
existence of any Event of Default, interest shall also be payable on
demand.

      


      2.10.3      Default Interest.  Commencing
upon the occurrence of any Event of Default, and continuing thereafter while
such Event of Default remains uncured, or after maturity or acceleration (unless
and until such acceleration is rescinded), Borrower shall pay interest (after as
well as before entry of judgment thereon to the extent permitted by law) on the
principal amount of all Obligations due and unpaid, at a rate per annum
determined by adding 400 basis points to the Applicable Margin then in effect
for such Loans and, in the case of Obligations not subject to an Applicable
Margin, at a rate per annum equal to the Reference Rate plus 400 basis points;
provided,
however, that on and after the expiration of any Interest Period applicable to
any LIBOR Loan outstanding on the date of occurrence of such Event of Default,
the principal amount of such Loan shall, during the continuation of such Event
of Default, bear interest at a rate per annum equal to the Reference Rate plus
400 basis points in excess of the Applicable Reference Rate Margin then in
effect.

      


      2.10.4      Maximum Legal
Rate.  Notwithstanding
anything to the contrary contained in any Loan Document, the interest paid or
agreed to be paid under the Loan Documents shall not exceed the maximum rate of
non-usurious interest permitted by applicable Law (the “Maximum
Rate”).  If Administrative Agent or any Lender shall receive
interest in an amount that exceeds the Maximum Rate, the excess interest shall
be applied to the principal of the Loans or, if it exceeds such unpaid
principal, refunded to Borrower.  In determining whether the interest
contracted for, charged, or received by Administrative Agent or a Lender exceeds
the Maximum Rate, such Person may, to the extent permitted by applicable Law,
(a) characterize any payment that is not principal as an expense, fee, or
premium rather than interest, (b) exclude voluntary prepayments and the effects
thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal
parts the total amount of interest throughout the contemplated term of the
Obligations hereunder.

      


      2.11         Fees.

      


      2.11.1      Facility Fee.  Borrower
shall pay to Administrative Agent, for the account of the Lenders (based on
their respective Pro Rata Shares), a facility fee (the “Facility Fee”)
computed based on the annual Facility Fee rate specified in the definition of
the term “Applicable Margin,” multiplied by the actual daily amount of the
Maximum Commitment Amount, in each case measured quarterly and payable quarterly
in arrears on (a) each January 1, April 1, July 1, and October 1, commencing
January 1, 2010 (for the calendar quarter ending December 31, 2009, but with
such initial payment of the Facility Fee pro rated from the Closing Date) and
(b) the Maturity Date (with such final payment of the Facility Fee pro rated to
the Maturity Date).


      
        
           


        

        
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      2.11.2      Letter of Credit
Fees.  Borrower
shall pay to Administrative Agent, for the account of the Lenders (based on
their respective Pro Rata Shares), a letter of credit fee (the “Letter of Credit
Fee”) for each issued and outstanding Letter of Credit in an amount equal
to the Applicable LIBOR Margin multiplied by the daily amount available to be
drawn under such Letter of Credit.  For purposes of computing the
daily amount available to be drawn under any Letter of Credit, the amount of
such Letter of Credit shall be determined in accordance with Section
1.2.4.  The Letter of Credit Fees shall be due and payable
quarterly in arrears on (a) each January 1, April 1, July 1, and October 1,
commencing January 1, 2010 (for the calendar quarter ending December 31, 2009,
but with such initial payment of the Letter of Credit Fee pro rated from the
Closing Date) and (b) the Maturity Date (with such final payment of the Letter
of Credit Fee pro rated to the Maturity Date).  Borrower shall also
pay to Administrative Agent, for the account of the L/C Issuer, at the time each
Letter of Credit is issued, a fronting fee (the “Fronting Fee”) in an
amount equal to twenty five basis points (0.25%) multiplied by the amount of
such Letter of Credit.  In addition, Borrower shall pay directly to
the L/C Issuer for its own account the other customary administrative, issuance,
presentation, amendment and other processing fees, and other standard costs and
charges, of the L/C Issuer relating to letters of credit as from time to time in
effect.  Such customary fees and standard costs and charges are due
and payable on demand and are nonrefundable.

      


      2.11.3      Other Fees.  Borrower
shall pay to Administrative Agent, for its own account, for the account of the
L/C Issuer or for the account of the Lenders, as applicable, such other fees as
are required by the engagement letter, dated November 2, 2009, between Borrower
and Administrative Agent (the “Engagement
Letter”).

      


      2.12         Computation of Fees and
Interest.  All
computations of interest and fees under this Agreement shall be made on the
basis of a 360-day year and actual days elapsed, which results in more interest
or fees being paid than if computed on the basis of a 365-day
year.  Interest and fees shall accrue during each period during which
interest or such fees are computed from the first day thereof to the last day
thereof.  Any change in the interest rate on a Loan resulting from a
change in the Reference Rate or the applicable reserve requirement, deposit
insurance assessment rate or other regulatory cost shall become effective as of
the opening of business on the day on which such change in the Reference Rate or
such reserve requirement, assessment rate or other regulatory cost becomes
effective.  Each determination of an interest rate by Administrative
Agent pursuant to any provision of this Agreement shall be conclusive and
binding on Borrower and the Lenders in the absence of manifest
error.

      


      2.13        
Payments by
Borrower.

      


      2.13.1      Timing of
Payments.  All
payments (including prepayments) made by Borrower on account of principal,
interest, fees and other amounts required hereunder shall be made without
set-off or counterclaim.  All such payments (other than payments on
Swing Loans) shall, except as otherwise expressly provided herein, be made to
Administrative Agent for the account of the Lenders at Agent’s Payment Office,
in dollars and in immediately available funds, no later than 2:00 p.m. on the
date specified herein.  All payments in respect of Swing Loans shall
be paid to Administrative Agent for the account of the Swing Line Lender and
shall be paid in dollars and in immediately available funds, no later than 2:00
p.m. on the date specified herein.  Any payment received by
Administrative Agent later than 2:00 p.m. shall be deemed to have been received
on the immediately succeeding Business Day and any applicable interest or fee
shall continue to accrue.  Administrative Agent will promptly (and in
any event, not later than two Business Days after Administrative Agent’s actual
receipt) distribute to each Lender its Pro Rata Share (or other applicable share
as provided herein) of such payment in like funds as received; provided, however, if
and to the extent Administrative Agent shall receive any such payment for the
account of Lenders on or before 2:00 p.m. on any Business Day and Administrative
Agent shall not have distributed to each Lender its Pro Rata Share (or other
applicable share as provided herein) on such Business Day, the distribution to
each Lender when made shall include interest at the Federal Funds Rate for each
day from the date of Administrative Agent’s actual receipt of such payment from
Borrower until the date Administrative Agent distributes to each Lender its Pro
Rata Share (or other applicable share as provided herein).


      
        
           


        

        
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      2.13.2      Non-Business
Days.  Subject
to the provisions set forth in the definition of the term “Interest Period.”
whenever any payment hereunder is stated to be due on a day other than a
Business Day, such payment shall be made on the next succeeding Business Day,
and such extension of time shall in such case be included in the computation of
interest or fees, as the case may be.

      


      2.13.3      Payment May be Made by
Administrative Agent.  Unless
Administrative Agent shall have received notice from Borrower prior to the date
on which any payment is due to Administrative Agent for the account of the
Lenders or the L/C Issuer hereunder that Borrower will not make such
payment.  Administrative Agent may assume that Borrower has made such
payment on such date in accordance herewith and may, in reliance upon such
assumption, distribute to the Lenders or the L/C Issuer, as the case may be, the
amount due.  In such event, if Borrower has not in fact made such
payment, then each of the Lenders or the L/C Issuer, as the case may be,
severally agrees to repay to Administrative Agent forthwith on demand the amount
so distributed to such Lender or the L/C Issuer, in immediately available funds
with interest thereon, for each day from and including the date such amount is
distributed to it to but excluding the date of payment to Administrative Agent,
at the greater of the Federal Funds Rate and a rate determined by Administrative
Agent in accordance with banking industry rules on interbank
compensation.  A notice of Administrative Agent to any Lender or
Borrower with respect to any amount owing under this Section 2.13.3 shall
be conclusive, absent manifest error.

      


      2.14         Payments by the Lenders to
Administrative Agent.

      


      2.14.1       Administrative Agent May
Make Borrowings Available.  With
respect to any Borrowing, unless Administrative Agent receives notice from a
Lender at least one Business Day prior to the date of such Borrowing, that such
Lender will not make available to Administrative Agent, for the account of
Borrower, the amount of that Lender’s Pro Rata Share of the Borrowing as and
when required hereunder, Administrative Agent may assume that each Lender has
made such amount available to Administrative Agent in immediately available
funds on the Borrowing date and Administrative Agent may (but shall not be so
required), in reliance upon such assumption, make available to Borrower on such
date a corresponding amount.  In such event, if a Lender has not in
fact made its share of the applicable Borrowing available to Administrative
Agent, then the applicable Lender and Borrower severally agree to pay to
Administrative Agent forthwith on demand such corresponding amount in
immediately available funds with interest thereon, for each day from and
including the date such amount is made available to Borrower to but excluding
the date of payment to Administrative Agent, at (a) in the case of a payment to
be made by such Lender, the greater of the Federal Funds Rate and a rate
determined by Administrative Agent in accordance with banking industry rules on
interbank compensation and (b) in the case of a payment to be made by Borrower,
the interest rate applicable to Reference Rate Loans.  If Borrower and
such Lender shall pay such interest to Administrative Agent for the same or an
overlapping period, Administrative Agent shall promptly remit to Borrower the
amount of such interest paid by Borrower for such period.  If such
Lender pays its share of the applicable Borrowing to Administrative Agent, then
the amount so paid shall constitute such Lender’s Loan included in such
Borrowing.  Any payment by Borrower shall be without prejudice to any
claim Borrower may have against a Lender that shall have failed to make such
payment to Administrative Agent.  A notice of Administrative Agent to
any Lender or Borrower with respect to any amount owing under this Section 2.14.1 shall
be conclusive, absent manifest error.


      
        
           


        

        
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      2.14.2      Obligations of Lenders
Several.  The
obligations of the Lenders hereunder to make Loans, to fund participations in
Letters of Credit and Swing Loans and to make payments pursuant to Section 10.4(c) are
several and not joint.  The failure of any Lender to make any Loan, to
fund any such participation or to make any payment under Section 10.4(c) on
any date required hereunder shall not relieve any other Lender of its
corresponding obligation to do so on such date.  No Lender shall be
responsible for the failure of any other Lender to so make its Loan, to purchase
its participation or to make its payment under Section
10.4(c).

      


      2.14.3     
Failure to Satisfy
Conditions Precedent.  If any
Lender makes available to Administrative Agent funds for any Loan to be made by
such Lender as provided in the foregoing provisions of this Article 2, and such
funds are not made available to Borrower by Administrative Agent because the
conditions to the applicable credit extension set forth in Article 5 are not
satisfied or waived in accordance with the terms hereof, Administrative Agent
shall return such funds (in like funds as received from such Lender) to such
Lender, without interest.

      


      2.14.4      Funding Source.  Nothing
herein shall be deemed to obligate any Lender to obtain the funds for any Loan
in any particular place or manner or to constitute a representation by any
Lender that it has obtained or will obtain the funds for any Loan in any
particular place or manner.

      


      2.15         Sharing of Payments,
Etc.  If any Lender shall, by exercising any right of setoff or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of the Loans made by it, or the participations in L/C
Obligations or in Swing Loans held by it resulting in such Lender’s receiving
payment of a proportion of the aggregate amount of such Loans or participations
and accrued interest thereon greater than its Pro Rata Share thereof as provided
herein, then the Lender receiving such greater proportion shall (a) notify
Administrative Agent of such fact, and (b) purchase (for cash at face value)
participations in the Loans and subparticipations in L/C Obligations and Swing
Loans of the other Lenders, or make such other adjustments as shall be
equitable, so that the benefit of all such payments shall be shared by the
Lenders ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Loans and other amounts owing them, provided that: (i) if
any such participations or subparticipations are purchased and all or any
portion of the payment giving rise thereto is recovered, such participations or
subparticipations shall be rescinded and the purchase price restored to the
extent of such recovery, without interest; and (ii) the provisions of this
Section shall not be construed to apply to (x) any payment made by Borrower
pursuant to and in accordance with the express terms of this Agreement, or (y)
any payment obtained by a Lender as consideration for the assignment of or sale
of a participation in any of its Loans or subparticipations in L/C Obligations
or Swing Loans to any assignee or participant, other than to Borrower or any
subsidiary thereof (as to which the provisions of this Section shall
apply).


      
        
           


        

        
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      2.16         Defaulting
Lender.

      


      2.16.1      Notice and Cure of Lender
Default; Election Period; Electing Lenders.  Administrative
Agent shall promptly notify (such notice being referred to as the “Defaulting Lender
Notice”) Borrower and each non-Defaulting Lender if any Lender is a
Defaulting Lender.  Each non-Defaulting Lender shall have the right,
but in no event or under any circumstance the obligation, to fund any amount
that a Defaulting Lender fails to fund (the “Defaulting Lender
Amount”), provided that, within
20 days after the date of the Defaulting Lender Notice (the “Election Period”),
such non-Defaulting Lender or Lenders (each such Lender, an “Electing Lender”)
irrevocably commit(s) by notice in writing (an “Election Notice”) to
Administrative Agent, the other Lenders and Borrower to fund the Defaulting
Lender Amount.  If Administrative Agent receives more than one
Election Notice within the Election Period, then the commitment to fund the
Defaulting Lender Amount shall be apportioned pro rata among the Electing
Lenders in the proportion that the amount of each such Electing Lender’s
Commitment bears to the total Commitments of all Electing Lenders.  If
the Defaulting Lender fails to pay the Defaulting Lender Amount within the
Election Period, (a) the Electing Lender or Lenders, as applicable, shall be
automatically obligated to fund the Defaulting Lender Amount (and Defaulting
Lender shall no longer be entitled to fund such Defaulting Lender Amount) within
three Business Days after such notice to Administrative Agent, which Defaulting
Lender Amount shall be applied towards reimbursement to Administrative Agent or
payment to Borrower as applicable, and (b) Borrower may enforce any rights it
may have under this Agreement, at law or in equity, against Defaulting
Lender.  Notwithstanding any contrary provision of this Agreement, if
Administrative Agent has funded the Defaulting Lender
Amount.  Administrative Agent shall be entitled to reimbursement from
the Electing Lenders for its portion of the Defaulting Lender
Amount.

      


      2.16.2      Removal of Rights:
Indemnity.  Administrative
Agent shall not be obligated to transfer to a Defaulting Lender any payments
made by or on behalf of Borrower to Administrative Agent for the Defaulting
Lender’s benefit; nor shall a Defaulting Lender be entitled to the sharing of
any payments hereunder or under any Note until all Defaulting Lender Amounts are
paid in full.  Administrative Agent shall hold all such payments
received or retained by it for the account of such Defaulting
Lender.  Amounts payable to a Defaulting Lender shall be paid by
Administrative Agent to reimburse Administrative Agent and any Electing Lender
pro rata for all Defaulting Lender Amounts funded by such
Persons.  Solely for the purposes of voting or consenting to matters
with respect to the Loan Documents, a Defaulting Lender shall be deemed not to
be a “Lender” and such Defaulting Lender’s Commitment shall be deemed to be
zero.  A Defaulting Lender shall have no right to participate in any
discussions among and/or decisions by Lenders hereunder and/or under the other
Loan Documents.  This Section shall remain effective with respect to a
Defaulting Lender until such time as the Defaulting Lender shall no longer be in
default of any of its obligations under this Agreement by curing such default by
payment of all Defaulting Lender Amounts (a) within the Election Period, or (b)
after the Election Period with the consent of the non-Defaulting
Lenders.  Such Defaulting Lender nonetheless shall be bound by any
amendment to, or waiver of, any provision of, or any action taken or omitted to
be taken by Administrative Agent and/or the non-Defaulting Lenders under, any
Loan Document which is made subsequent to the Defaulting Lender’s becoming a
Defaulting Lender and prior to such cure or waiver.  The operation of
this Section or the Section above alone shall not be construed to increase or
otherwise affect the Commitment of any non-Defaulting Lender, or to relieve or
excuse the performance by Borrower of its duties and obligations hereunder or
under any of the other Loan Documents.  Furthermore, nothing contained
in this Section shall release or in any way limit a Defaulting Lender’s
obligations as a Lender hereunder and/or under any other of the Loan
Documents.  Further, a Defaulting Lender shall indemnify and hold
harmless Administrative Agent and each of the non-Defaulting Lenders from any
claim, loss, or costs incurred by Administrative Agent and/or the non-Defaulting
Lenders as a result of a Defaulting Lender’s failure to comply with the
requirements of this Agreement, including any and all additional losses,
damages, costs and expenses (including attorneys’ fees) incurred by
Administrative Agent and any non-Defaulting Lender as a result of and/or in
connection with (i) a non-Defaulting Lender’s acting as an Electing Lender, (ii)
any enforcement action brought by Administrative Agent against a Defaulting
Lender, and (iii) any action brought against Administrative Agent and/or
Lenders.  The indemnification provided above shall survive any
termination of this Agreement.


      
        
           


        

        
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      2.16.3      Commitment
Adjustments.  In
connection with the adjustment of the amounts of the Commitments of the
Defaulting Lender and Electing Lender(s) upon the expiration of the Election
Period described above, Borrower, Administrative Agent and Lenders shall execute
such modifications to the Loan Documents as shall, in the reasonable judgment of
Administrative Agent, be necessary or desirable in connection with the
adjustment of the amounts of Commitments in accordance with the foregoing
provisions of this Section.  For the purpose of voting or consenting
to matters with respect to the Loan Documents such modifications shall also
reflect the removal of voting rights of the Defaulting Lender and increase in
voting rights of Electing Lenders to the extent an Electing Lender has funded
the Defaulting Lender Amount.  In connection with such adjustments,
each Defaulting Lender shall execute and deliver an Assignment and Assumption
covering that Lender’s Commitment and otherwise comply with Section
10.5.  If a Lender refuses to execute and deliver such
Assignment and Assumption or otherwise comply with Section 10.5, such
Lender hereby appoints Administrative Agent to do so on such Lender’s
behalf.  Administrative Agent shall distribute an amended schedule of
Lenders, which shall thereafter be incorporated into this Agreement, to reflect
such adjustments.  However, all such Defaulting Lender Amounts funded
by Administrative Agent or Electing Lenders shall continue to be Defaulting
Lender Amounts of the Defaulting Lender pursuant to its obligations under this
Agreement.

      


      2.16.4      No Election.  In the
event that no Lender elects to commit to fund a Defaulting Lender Amount within
the applicable Election Period, Administrative Agent shall, upon the expiration
of such Election Period, so notify Borrower and each Lender.


      
        
           


        

        
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                3.

              	
                TAXES, YIELD
      PROTECTION AND ILLEGALITY.

              


      

      


      3.1           Taxes.

      


      3.1.1        Payments Free of
Taxes.  Any and
all payments by or on account of any obligation of Borrower hereunder or under
any other Loan Document shall be made free and clear of and without reduction or
withholding for any Indemnified Taxes or Other Taxes, provided that if
Borrower shall be required by applicable Law to deduct any Indemnified Taxes
(including any Other Taxes) from such payments, then (i) the sum payable shall
be increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section 3.1)
Administrative Agent, Lender or L/C Issuer, as the case may be, receives an
amount equal to the sum it would have received had no such deductions been made,
(ii) Borrower shall make such deductions, and (iii) Borrower shall timely pay
the full amount deducted to the relevant Governmental Authority in accordance
with applicable Law.

      


      3.1.2        Payment of Other Taxes by
Borrower.  Without
limiting the provisions of Section 3.1.1 above, Borrower shall timely pay any
Other Taxes to the relevant Governmental Authority in accordance with applicable
Law.

      


      3.1.3        Indemnification by
Borrower.  Borrower
shall indemnify Administrative Agent, each Lender and the L/C Issuer, within 10
days after demand therefor, for the full amount of any Indemnified Taxes or
Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on
or attributable to amounts payable under this Section) paid by Administrative
Agent, such Lender or the L/C Issuer, as the case may be, and any penalties,
interest and reasonable expenses arising therefrom or with respect thereto,
whether or not such Indemnified Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority.  A
certificate as to the amount of such payment or liability delivered to Borrower
by a Lender or the L/C Issuer (with a copy to Administrative Agent), or by
Administrative Agent on its own behalf or on behalf of a Lender or the L/C
Issuer, shall be conclusive absent manifest error.

      


      3.1.4        Evidence of
Payments.  As soon
as practicable after any payment of Indemnified Taxes or Other Taxes by Borrower
to a Governmental Authority, Borrower shall deliver to Administrative Agent the
original or a certified copy of a receipt issued by such Governmental Authority
evidencing such payment, a copy of the return reporting such payment or other
evidence of such payment reasonably satisfactory to Administrative
Agent.

      


      3.1.5        Status of
Lenders.  Any
Foreign Lender that is entitled to an exemption from or reduction of withholding
tax under the law of the jurisdiction in which Borrower is resident for tax
purposes, or any treaty to which such jurisdiction is a party, with respect to
payments hereunder or under any other Loan Document shall deliver to Borrower
(with a copy to Administrative Agent), at the time or times prescribed by
applicable Law or reasonably requested by Borrower or Administrative Agent, such
properly completed and executed documentation prescribed by applicable Law as
will permit such payments to be made without withholding or at a reduced rate of
withholding.  In addition, any Lender, if requested by Borrower or
Administrative Agent, shall deliver such other documentation prescribed by
applicable Law or reasonably requested by Borrower or Administrative Agent as
will enable Borrower or Administrative Agent to determine whether or not such
Lender is subject to backup withholding or information reporting
requirements.  Without limiting the generality of the foregoing, in
the event that Borrower is resident for tax purposes in the United States, any
Foreign Lender shall deliver to Borrower and Administrative Agent (in such
number of copies as shall be requested by the recipient) on or prior to the date
on which such Foreign Lender becomes a Lender under this Agreement (and from
time to time thereafter upon the request of Borrower or Administrative Agent,
but only if such Foreign Lender is legally entitled to do so), whichever of the
following is applicable: (i) duly completed copies of Internal Revenue Service
Form W-8BEN claiming eligibility for benefits of an income tax treaty to which
the United States is a party, (ii) duly completed copies of Internal Revenue
Service Form W-8ECI, (iii) in the case of a Foreign Lender claiming the benefits
of the exemption for portfolio interest under Section 881(c) of the Code, (x) a
certificate to the effect that such Foreign Lender is not (A) a “bank” within
the meaning of Section 881(c)(3)(A) of the Code, (B) a “10 percent shareholder”
of Borrower within the meaning of Section 881(c)(3)(B) of the Code, or (C) a
“controlled foreign corporation” described in Section 881(c)(3)(C) of the Code
and (y) duly completed copies of Internal Revenue Service Form W-8BEN, or (iv)
any other form prescribed by applicable Law as a basis for claiming exemption
from or a reduction in United States Federal withholding tax duly completed
together with such supplementary documentation as may be prescribed by
applicable Law to permit Borrower to determine the withholding or deduction
required to be made.


      
        
           


        

        
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      3.1.6        Treatment of Certain
Refunds.  If
Administrative Agent, any Lender or the L/C Issuer determines, in its sole
discretion, that it has received a refund of any Taxes or Other Taxes as to
which it has been indemnified by Borrower or with respect to which Borrower has
paid additional amounts pursuant to this Section, it shall pay to Borrower an
amount equal to such refund (but only to the extent of indemnity payments made,
or additional amounts paid, by Borrower under this Section 3.1 with
respect to the Taxes or Other Taxes giving rise to such refund), net of all
reasonable out-of-pocket expenses of Administrative Agent, such Lender or the
L/C Issuer, as the case may be, and without interest (other than any interest
paid by the relevant Governmental Authority with respect to such refund), provided that
Borrower, upon the request of Administrative Agent, such Lender or the L/C
Issuer, agrees to repay the amount paid over to Borrower (plus any penalties,
interest or other charges imposed by the relevant Governmental Authority) to
Administrative Agent, such Lender or the L/C Issuer in the event Administrative
Agent, such Lender or the L/C Issuer is required to repay such refund to such
Governmental Authority.  This subsection shall not be construed to
require Administrative Agent, any Lender or the L/C Issuer to make available its
tax returns (or any other information relating to its taxes that it deems
confidential) to Borrower or any other Person.

      


      3.2           Illegality.  If any
Lender determines that any Law has made it unlawful, or that any Governmental
Authority has asserted that it is unlawful, for any Lender or its applicable
Lending Office to make, maintain or fund LIBOR Loans, or to determine or charge
interest rates based upon the LIBOR Base Rate, or any Governmental Authority has
imposed material restrictions on the authority of such Lender to purchase or
sell, or to take deposits of, dollars in the London interbank market, then, on
notice thereof by such Lender to Borrower through Administrative Agent (a “LIBOR Suspension
Notice”), any obligation of such Lender to make or continue LIBOR Loans
or to convert Reference Rate Loans to LIBOR Loans shall be suspended until such
Lender notifies Administrative Agent and Borrower that the circumstances giving
rise to such determination no longer exist.  Upon receipt of such
LIBOR Suspension Notice, Borrower shall, upon demand from such Lender (with a
copy to Administrative Agent), repay, prepay or, if applicable, convert all
LIBOR Loans of such Lender to Reference Rate Loans, either on the last day of
the Interest Period therefor, if such Lender may lawfully continue to maintain
such LIBOR Loans to such day, or immediately, if such Lender may not lawfully
continue to maintain such LIBOR Loans.  Upon any such prepayment or
conversion, Borrower shall also pay accrued interest on the amount so prepaid or
converted.  Delivery of a LIBOR Suspension Notice shall not affect the
obligation of any other Lender to make, maintain and fund LIBOR Loans under the
terms of this Agreement, unless such other Lender also delivers a LIBOR
Suspension Notice under this Section
3.2.


      
        
           


        

        
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      3.3           Increased Costs.

      


      3.3.1        Increased Costs
Generally.  If any
Change in Law shall: (i) impose, modify or deem applicable any reserve, special
deposit, compulsory loan, insurance charge or similar requirement against assets
of, deposits with or for the account of, or credit extended or participated in
by, any Lender (except any reserve requirement reflected in the LIBOR Rate) or
the L/C Issuer; (ii) subject any Lender or the L/C Issuer to any tax of any kind
whatsoever with respect to this Agreement, any Letter of Credit, any
participation in a Letter of Credit or any LIBOR Loan made by it, or change the
basis of taxation of payments to such Lender or the L/C Issuer in respect
thereof (except for Indemnified Taxes or Other Taxes covered by Section 3.1 and the
imposition of, or any change in the rate of, any Excluded Tax payable by such
Lender or the L/C Issuer); or (iii) impose on any Lender or the L/C Issuer or
the London interbank market any other condition, cost or expense affecting this
Agreement or LIBOR Loans made by such Lender or any Letter of Credit or
participation therein; and the result of any of the foregoing shall be to
increase the cost to such Lender of making or maintaining any LIBOR Loan (or of
maintaining its obligation to make any such Loan), or to increase the cost to
such Lender or the L/C Issuer of participating in, issuing or maintaining any
Letter of Credit (or of maintaining its obligation to participate in or to issue
any Letter of Credit), or to reduce the amount of any sum received or receivable
by such Lender or the L/C Issuer hereunder (whether of principal, interest or
any other amount) then, upon request of such Lender or the L/C Issuer, Borrower
will pay to such Lender or the L/C Issuer, as the case may be, such additional
amount or amounts as will compensate such Lender or the L/C Issuer, as the case
may be, for such additional costs incurred or reduction suffered.

      


      3.3.2        Capital
Requirements.  If any
Lender or the L/C Issuer determines that any Change in Law affecting such Lender
or the L/C Issuer or any Lending Office of such Lender or such Lender’s or the
L/C Issuer’s holding company, if any, regarding capital requirements has or
would have the effect of reducing the rate of return on such Lender’s or the L/C
Issuer’s capital or on the capital of such Lender’s or the L/C Issuer’s holding
company, if any, as a consequence of this Agreement, the Commitments of such
Lender or the Loans made by, or participations in Letters of Credit held by,
such Lender, or the Letters of Credit issued by the L/C Issuer, to a level below
that which such Lender or the L/C Issuer or such Lender’s or the L/C Issuer’s
holding company could have achieved but for such Change in Law (taking into
consideration such Lender’s or the L/C Issuer’s policies and the policies of
such Lender’s or the L/C Issuer’s holding company with respect to capital
adequacy), then from time to time Borrower will pay to such Lender or the L/C
Issuer, as the case may be, such additional amount or amounts as will compensate
such Lender or the L/C Issuer or such Lender’s or the L/C Issuer’s holding
company for any such reduction suffered.


      
        
           


        

        
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      3.3.3        Delay in
Requests.  Failure
or delay on the part of any Lender or the L/C Issuer to demand compensation
pursuant to the foregoing provisions of this Section 3 shall not
constitute a waiver of such Lender’s or the L/C Issuer’s right to demand such
compensation, provided that
Borrower shall not be required to compensate a Lender or the L/C Issuer pursuant
to the foregoing provisions of this Section 3 for any
increased costs incurred or reductions suffered more than three months prior to
the date that such Lender or the L/C Issuer, as the case may be, notifies
Borrower in writing of the Change in Law giving rise to such increased costs or
reductions and of such Lender’s or the L/C Issuer’s intention to claim
compensation therefor (except that, if the Change in Law giving rise to such
increased costs or reductions is retroactive, then the three-month period
referred to above shall be extended to include the period of retroactive effect
thereof).

      


      3.4           Funding Losses.  Borrower
agrees to pay to Administrative Agent, from time to time, for the account of the
Lenders, any amount that would be necessary to reimburse the Lenders for, and to
hold the Lenders harmless from, any loss or expense which the Lenders may
reasonably sustain or incur as a consequence of:

      


      (a)           the
failure of Borrower to make any required payment or prepayment of principal of
any LIBOR Loan (including payments made after any acceleration
thereof);

      


      (b)           the
failure of Borrower to borrow, continue or convert a Loan after Borrower has
given a Notice of Borrowing or Conversion/Continuation;

      


      (c)           the
failure of Borrower to make any prepayment after Borrower has given a notice in
accordance with Section
2.8.1;

      


      (d)           the
prepayment (including pursuant to Section 2.8.2) of a
LIBOR Loan on a day which is not the last day of the Interest Period with
respect thereto;

      


      (e)           the
conversion pursuant to Section 2.6 of any
LIBOR Loan to a Reference Rate Loan on a day that is not the last day of the
respective Interest Period; or

      


      (f)           any
assignment of a LIBOR Loan on a day other than the last day of the Interest
Period therefor as a result of a request by the Borrower pursuant to Section
10.13;

      


      including
any such loss or expense arising from the liquidation or reemployment of funds
obtained to maintain the LIBOR Loans hereunder or from fees payable to terminate
the deposits from which such funds were obtained.  Solely for purposes
of calculating amounts payable by Borrower to Administrative Agent, for the
account of Lenders, under this Section 3.4, each
LIBOR Loan (and each related reserve, special deposit or similar requirement)
shall be conclusively deemed to have been funded at the rate of interest used to
determine such LIBOR Loan by a matching deposit or other borrowing in the London
interbank eurodollar market for a comparable amount and for a comparable period,
whether or not such LIBOR Loan is in fact so funded.


      
        
           


        

        
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      3.5           Inability to Determine
Rates.  If the
Required Lenders determine that for any reason in connection with any request
for a LIBOR Loan or a conversion to or continuation thereof that (a) dollar
deposits are not being offered to banks in the London interbank eurodollar
market for the applicable amount and Interest Period of such LIBOR Loan, (b)
adequate and reasonable means do not exist for determining the LIBOR Base Rate
for any requested Interest Period with respect to a proposed LIBOR Loan, or (c)
the LIBOR Base Rate for any requested Interest Period with respect to a proposed
LIBOR Loan does not adequately and fairly reflect the cost to such Lenders of
funding such Loan, Administrative Agent will promptly so notify Borrower and
each Lender.  Thereafter, the obligation of the Lenders to make or
maintain LIBOR Loans shall be suspended until Administrative Agent (upon the
instruction of the Required Lenders) revokes such notice.  Upon
receipt of such notice, Borrower may revoke any pending request for a Borrowing
of, conversion to or continuation of LIBOR Loans or, failing that, will be
deemed to have converted such request into a request for a Borrowing of
Reference Rate Loans in the amount specified therein.

      


      3.6           Certificate of
Lender.  Any
Lender or the L/C Issuer if claiming reimbursement or compensation pursuant to
this Article 3,
shall deliver to Borrower through Administrative Agent a certificate setting
forth in reasonable detail the amount payable to such Lender or the L/C Issuer,
or its holding company, as the case may be, hereunder, and such certificate
shall be conclusive absent manifest error.  Borrower shall pay such
Lender or the L/C Issuer, as the case may be, the amount shown as due on any
such certificate within 10 days after receipt thereof.

      


      3.7           Mitigation Obligations;
Replacement of Lenders.

      


      (a)           Designation of a Different
Lending Office.  If any
Lender requests compensation under Section 3.3, or
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.1, or if
any Lender gives a notice pursuant to Section 3.2, then
such Lender shall use reasonable efforts to designate a different Lending Office
for funding or booking its Loans hereunder or to assign its rights and
obligations hereunder to another of its offices, branches or affiliates, if, in
the judgment of such Lender, such designation or assignment (i) would eliminate
or reduce amounts payable pursuant to Section 3.1 or 3.3, as the case may
be, in the future, or eliminate the need for the notice pursuant to Section 3.2, as
applicable, and (ii) in each case, would not subject such Lender to any
unreimbursed cost or expense and would not otherwise be disadvantageous to such
Lender.  Borrower hereby agrees to pay all reasonable costs and
expenses incurred by any Lender in connection with any such designation or
assignment.

      


      (b)           Replacement of
Lenders.  If any
Lender requests compensation under Section 3.3, or if
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.1, Borrower
may replace such Lender in accordance with Section
10.13.

      


      3.8           Survival.  The
agreements and obligations of Borrower in this Article 3 shall
survive the payment and performance of all other Obligations for a period of
four (4) years after the Maturity Date.


      
        
           


        

        
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                4.

              	
                UNENCUMBERED ASSET
      POOL.

              


      

      


      4.1           Additions of Property to the
Unencumbered Asset Pool.

      


      (a)           In
addition to the real property described in Exhibits A-l and
A-2 attached
hereto, Borrower may from time to time request that Administrative Agent add a
new property (a “Nominated Property”)
to the Unencumbered Asset Pool, as follows.

      


      (i)          
 To become an Unencumbered Stabilized Asset Property, a Nominated Property
must satisfy each of the following conditions:

      


      (1)           Borrower
or a Permitted Affiliate shall hold fee simple title to such Nominated Property
or such Nominated Property is subject to a financeable ground lease (as
determined by Administrative Agent in its reasonable discretion) in compliance
with the second sentence of Section 4.1(c) and
such Nominated Property shall be located in the United States;

      


      (2)           Such
Nominated Property is operated as residential apartments, with no more than 20%
of gross revenue generated by non-residential tenants;

      


      (3)           Such
Nominated Property shall have minimum occupancy of 70%, and if admitted to the
pool of Unencumbered Stabilized Asset Properties, would not cause the aggregate
occupancy of the Unencumbered Stabilized Asset Properties to be less than
85%;

      


      (4)           If
requested by Administrative Agent, Borrower shall have delivered to
Administrative Agent a copy of a Phase I environmental site assessment for such
Nominated Property, in form and substance reasonably acceptable to
Administrative Agent and prepared within one year of its delivery, and such
environmental site assessment (i) shall not disclose the presence of any
material toxic or Hazardous Substances on the Nominated Property (other than
asbestos or asbestos containing materials (“ACM”) or Hazardous
Substances used for cleaning, pool and other chemicals typically located on
residential properties that are otherwise consistent with all applicable Laws);
and (ii) if such environmental site assessment discloses the presence of
asbestos or ACM on the Nominated Property, all such asbestos or ACM shall be in
a condition reasonably acceptable to Administrative Agent, shall be subject to
an O&M Plan reasonably acceptable to Administrative Agent, and Borrower or a
Permitted Affiliate, as applicable, shall be performing its obligations under
such O&M Plan in a manner reasonably acceptable to Administrative
Agent;

      


      (5)           Such
Nominated Property shall be free of all liens, encumbrances and negative
pledges, except for the following permitted liens (“Permitted
Liens”):  (i) liens for taxes, assessments or governmental
charges or levies to the extent that Borrower or a Permitted Affiliate is not
yet required to pay the amount secured thereby; and (ii) liens imposed by law,
such as carrier’s, warehouseman’s, mechanic’s, materialman’s and other similar
liens, arising in the ordinary course of business in respect of obligations that
are not overdue or are being actively contested in good faith by appropriate
proceedings and in compliance with Section 6.14(c)
hereof, as long as Borrower or a Permitted Affiliate, as applicable, has
established and maintained adequate reserves for the payment of the same and, by
reason of nonpayment, no property of Borrower or a Permitted Affiliate, as
applicable, is in danger of being lost or forfeited; and (iii) easements;
covenants, conditions and restrictions; reciprocal easement and access
agreements and similar agreements relating to ownership and operation;
and


      
        
           


        

        
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      (6)           The
portion of the Unencumbered Asset Pool Value attributable to such Nominated
Property shall not exceed twenty percent (20%).

      


      (ii)           To
become an Unencumbered Development Property, a Nominated Property must satisfy
each of the following conditions:

      


      (1)           Borrower
or a Permitted Affiliate shall hold fee simple title to such Nominated Property
or such Nominated Property is subject to a financeable ground lease (as
determined by Administrative Agent in its reasonable discretion) in compliance
with the second sentence of Section 4.1(c) and
such Nominated Property shall be located in the United States;

      


      (2)           Such
Nominated Property is real property comprised of residential apartment projects
under development, with no more than 20% of the pro forma revenue of such
development expected to be generated by non-residential tenants, or in
pre-construction phases of the development process, but Completion of
Construction has not occurred or did not occur within the prior 12-month
period;

      


      (3)           If
requested by Administrative Agent, Borrower shall have delivered to
Administrative Agent a copy of a Phase I environmental site assessment for such
Nominated Property as described in paragraph (4) of clause (i)
above;

      


      (4)           Such
Nominated Property shall be free of all liens, encumbrances and negative
pledges, except for Permitted Liens as described in paragraph (5) of clause (i)
above;

      


      (5)           Upon
the addition of such Nominated Property as an Unencumbered Development of
Property, no more than 25% (or 20% if at such time Guarantor has less than a
BBB- or Baa3 (as applicable) credit rating from S&P or Moody’s) of the
Unencumbered Asset Pool Value may be attributable to Unencumbered Development
Property in the aggregate; and

      


      (6)           The
portion of the Unencumbered Asset Pool Value attributable to such Nominated
Property shall not exceed twenty percent (20%).

      


      Notwithstanding
the foregoing, such Nominated Property shall no longer qualify as an
Unencumbered Development Property on the date that is the earlier of (A) twelve
months following the date that Completion of Construction on such Nominated
Property has occurred, or (B) the first fiscal quarter in which such Nominated
Property becomes an Unencumbered Stabilized Asset Property.  In
addition, if the Unencumbered Development Property Value at any time exceeds 25%
of the Unencumbered Asset Pool Value (or 20%, if Guarantor at any time has less
than a BBB- or Baa3 (as applicable) credit rating from S&P or Moody’s),
sufficient Unencumbered Development Property shall be removed from the
Unencumbered Asset Pool under Sections 4.1(b)
or (c) below
such that the Unencumbered Development Property Value at any time is equal to or
less than 25% (or 20%, if applicable) of the Unencumbered Asset Pool
Value.


      
        
           


        

        
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      (iii)          Nominated
Properties that satisfy all of the foregoing conditions in the foregoing clause
(i) or (ii), as applicable, subject to Section 4.2, will
automatically become Unencumbered Asset Pool Properties so long as Guarantor has
a BBB- or Baa3 (as applicable) or better credit rating from S&P or Moody’s
at the time such conditions are satisfied.  If Guarantor’s credit
rating is less than BBB- or Baa3 (as applicable), Nominated Properties will
become Unencumbered Asset Pool Properties at the sole and absolute discretion of
the Required Lenders.

      


      (b)           Borrower
may, at its option, elect to remove an Unencumbered Asset Pool Property from the
Unencumbered Asset Pool, from time to time, including when such property is
sold, disposed of, or no longer meets the qualifications of an Unencumbered
Asset Pool Property.  When (i) an Unencumbered Asset Pool Property is
removed from the Unencumbered Asset Pool and Borrower continues to own the
property, on or before the removal of the Unencumbered Asset Pool Property from
the Unencumbered Asset Pool, Borrower shall deliver to Administrative Agent a
written notice, setting forth the identity of the Unencumbered Asset Pool
Property to be removed and the requested date of removal; and (ii) an
Unencumbered Asset Pool Property is removed from the Unencumbered Asset Pool and
Borrower no longer has ownership of the property, within five Business Days
after such Unencumbered Asset Pool Property is sold or disposed of, Borrower
shall deliver to Administrative Agent a written notice, setting forth the
identity of the Unencumbered Asset Pool Property that has been removed and the
date of removal (which date shall be deemed to be the date that Borrower no
longer had ownership of such property).  Pursuant to the foregoing
clauses (i) and (ii), with such notice, Borrower shall also deliver a compliance
certificate, substantially similar to the form of Exhibit D (a
“Compliance
Certificate”), signed and certified by an authorized financial officer of
Borrower (A) setting forth the information and computations (in sufficient
detail) to determine the Unencumbered Asset Pool Value after such removal; (B)
provided from information based upon the most recently delivered financial
statements under Section 6.3 hereof,
establishing that, on a pro-forma basis as if such Unencumbered Asset Pool
Property had been removed from the Unencumbered Asset Pool before the end of the
reporting period under such financial statements, Borrower would be in
compliance with all financial covenants set forth in this Agreement following
such removal as of the date of such financial statements; (C) stating
specifically that the aggregate Outstanding Amount of Loans and Swing Loans plus
the Outstanding Amount of L/C Obligations after such removal will be less than
or equal to the Availability; (D) stating specifically that the Unencumbered
Development Property Value does not exceed 25% of the Unencumbered Asset Pool
Value (or 20% of the Unencumbered Asset Pool Value at such time that Guarantor
has less than a BBB- or Baa3 (as applicable) credit rating from S&P or
Moody’s); and (E) setting forth whether there exists or to the best of
Borrower’s knowledge as of the date of such removal there will exist, any
Default or Event of Default and, if any such Default or Event of Default exists,
specifying the nature thereof and the action Borrower is taking and proposes to
take with respect thereto.  At the time of any such removal, Borrower
shall pay Administrative Agent all reasonable attorneys’ fees (including fees
for in-house counsel) incurred by Administrative Agent in connection with
removing the property from the Unencumbered Asset Pool and shall make any
payments to continue compliance with the terms of this Agreement, including
those relating to the requirement that the aggregate Outstanding Amount of Loans
and Swing Loans plus the Outstanding Amount of L/C Obligations not exceed the
Availability, necessary as a result of the requested removal.


      
        
           


        

        
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      (c)           If
the Unencumbered Asset Pool as a whole fails to meet any of the conditions set
forth in Section
4.1(a)(i) or Section 4.1(a)(ii),
as applicable (including the condition that the Unencumbered Development
Property Value does not at any time exceed 25% of the Unencumbered Asset Pool
Value), and any one of two or more properties might be removed to maintain
compliance of the Unencumbered Asset Pool as a whole with the such conditions,
then Borrower shall select the property or properties to be removed, provided that if it
does not do so within ten days of written request to do so from Administrative
Agent, then Administrative Agent may in its sole discretion select the property
or properties to remove and so remove them.  Notwithstanding the
foregoing, any property subject to a financeable ground lease (as determined by
Administrative Agent in its reasonable discretion) in excess of 30 years
(provided that no less than 15 years shall be remaining on such ground lease),
shall not cease to be an Unencumbered Stabilized Asset Property solely because
that property has been acquired by ground lease and not by fee
simple.  At the time of any such removal, Borrower shall pay
Administrative Agent all reasonable attorneys’ fees (including fees for in-house
counsel) incurred by Administrative Agent in connection with removing the
property from the Unencumbered Asset Pool, and shall make any payments to
continue compliance with the terms of this Agreement, including but not limited
to those relating to the requirement that the aggregate Outstanding Amount of
Loans and Swing Loans plus the Outstanding Amount of L/C Obligations not exceed
the Availability, necessary as a result of such removal.

      


      4.2           Delivery of
Information.  In
connection with each request to add a Nominated Property to the Unencumbered
Asset Pool, Borrower will submit to Administrative Agent all of the following
information and documentation:

      


      (a)           if
requested in writing by Administrative Agent, a current Phase I environmental
site assessment for such Nominated Property addressed to Borrower or a Permitted
Affiliate, as applicable; provided, however,
that in any event Borrower shall not be required to resubmit a Phase I
environmental site assessment to Administrative Agent for any Unencumbered
Stabilized Asset Property listed on Exhibit A-l attached
hereto.

      


      (b)           a
title insurance policy insuring Borrower’s or a Permitted Affiliate’s fee title
to (or financeable leasehold in) such Nominated Property free of any Liens,
except for Permitted Liens, and a current title report with respect to such
Nominated Property; provided, however, Borrower shall not be required to
resubmit a title insurance policy to Administrative Agent for any Unencumbered
Stabilized Asset Property listed on Exhibit A-1 attached
hereto;

      


      (c)           if
requested in writing by Administrative Agent with respect to any such Nominated
Property that is to qualify as an Unencumbered Stabilized Asset Property, a
current rent roll and leasing status report for such Nominated
Property;

      


      (d)           if
requested in writing by Administrative Agent, an operating statement for such
Nominated Property (which shall include a detailed analysis of the net operating
income generated from such property, including gross rental receipts, detailed
operating expenses, capital expenditures and other relevant information) for the
four most recent consecutive calendar quarters for which Borrower has operating
information (or, if operating information for fewer than four consecutive
calendar quarters is available to Borrower, an operating statement for such
Nominated Property for the number of the most recent consecutive calendar
quarters for which Borrower has operating information);


      
        
           


        

        
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      (e)           if
such Nominated Property is owned by a Permitted Affiliate, a Payment Guaranty,
executed by such Permitted Affiliate, together with all of the items described
in Sections 5.1.1(b),
(c), (d), (e) and (f) with respect to
such Permitted Affiliate;

      


      (f)           if
requested in writing by Administrative Agent with respect to any Nominated
Property that is to qualify as an Unencumbered Development Property, evidence of
the cost of such property, an accounting as to all construction and development
costs incurred to date by Borrower or the applicable Permitted Affiliate with
respect to such property, a budget for expected future construction and
development costs to complete construction of such property, and a construction
timetable for such property;

      


      (g)           a
certification signed by a Responsible Officer that, to the actual knowledge of
such Responsible Officer, no material structural defects and no material
environmental condition or contamination (including, but not limited to, with
respect to any Hazardous Substances) exist with respect to the Nominated
Property; and

      


      (h)           any
other information, documentation or other items relating to the Nominated
Property that Administrative Agent may require in its sole
discretion.

      


      Notwithstanding
anything to the contrary contained herein, no property owned by any subsidiary
of Borrower of Guarantor shall be counted as an Unencumbered Asset Pool Property
unless such property is nominated as a Nominated Property pursuant to Section 4.1 and Section 4.2 and the
subsidiary becomes a “Permitted Affiliate” hereunder by executing the Payment
Guaranty and delivering the other documents described in Section 4.2(e)
hereof.

      


      
        	
                5.

              	
                CONDITIONS TO
      DISBURSEMENTS.

              


      

      


      5.1           Conditions to Initial
Loans.  The
obligation of the Lenders to make the initial Loan after the Closing Date is
subject to the satisfaction of all of the following conditions
precedent:

      


      5.1.1        Deliveries to Administrative
Agent.  Administrative
Agent shall have received each of the following items, in form and substance
satisfactory to Administrative Agent and the Lenders:

      


      (a)           Loan
Documents.  This Agreement, each Note (including each Revolving
Note and the Swing Line Note), the Guaranty, each Payment Guaranty issued by
each Permitted Affiliate listed on Schedule 1.4, and
each other document the Required Lenders may reasonably require, executed and
acknowledged as appropriate;

      


      (b)           Authorizations.  Evidence
that the execution, delivery and performance by Borrower, Guarantor and each
Permitted Affiliate, as the case may be, of this Agreement and the other Loan
Documents have been duly authorized, executed and delivered by Responsible
Officers of Borrower, Guarantor and each Permitted Affiliate, including, without
limitation, authorizing resolutions and incumbency certificates for such
Responsible Officers;


      
        
           


        

        
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      (c)           Governing
Documents.  Copies of Borrower’s current partnership agreement
and certificate of limited partnership and any amendments and modifications
thereto, and Guarantor’s articles of incorporation and any amendments and
modifications thereto, and each Permitted Affiliate’s organizational or
formation documents;

      


      (d)           Good
Standing.  If required by Administrative Agent, Certificates of
Good Standing for Borrower, Guarantor and each Permitted Affiliate from their
respective states of organization and from any other state in which Borrower,
Guarantor and each Permitted Affiliate is required to qualify to conduct its
business;

      


      (e)           Legal
Opinions.  A written opinion of Borrower’s legal counsel and a
written opinion of Guarantor’s and each Permitted Affiliate’s legal counsel,
each covering such matters as the Required Lenders may reasonably
require.  The legal counsel and the terms of the opinion must be
reasonably acceptable to Administrative Agent and the Lenders;

      


      (f)          
 Insurance.  If
required by Administrative Agent, evidence of any insurance coverage required by
Section 6.1.3
of this Agreement;

      


      (g)           Certificate Regarding No
Default or Material Adverse Change.  A certificate of
Borrower’s Responsible Officer, dated the Closing Date, certifying that (i) the
representations and warranties contained in Article 7 are true
and correct on and as of such date, as though made on and as of such date; (ii)
the calculation of the Availability as of the Closing Date is true and correct
on and as of such date; (iii) no Default or Event of Defaults exists or would
result from the extensions of credit advanced on the Closing Date; and (iv) no
material adverse change in the business, assets, operations, condition
(financial or otherwise) or prospects of Borrower, Guarantor or any of their
subsidiaries or Affiliates has occurred since June 30, 2009, and Guarantor’s
senior unsecured debt rating has not changed since June 30, 2009;

      


      (h)           Property
Information.  A copy of each item described in Sections 4.2(b) and
(e) and
evidence of the insurance required under Section 6.1.3 for
each Unencumbered Stabilized Asset Pool Property listed in Exhibit A-l hereto
and for each Unencumbered Development Property named in Exhibit A-2
hereto.

      


      (i)         
  Other
Items.  Any other items that Administrative Agent reasonably
requires.

      


      Without
limiting the generality of the provisions of Section 9.4, for
purposes of determining compliance with the conditions specified in this Section 5.1, each
Lender that has signed this Agreement shall be deemed to have consented to,
approved or accepted or to be satisfied with, each document or other matter
required thereunder to be consented to or approved by or acceptable or
satisfactory to a Lender unless Administrative Agent shall have received written
notice from such Lender prior to the proposed Closing Date specifying its
objection thereto.

      


      5.1.2        Payment of Fees.  Borrower
shall have paid to Administrative Agent, for its own account or for the account
of the Lenders, as applicable, the fees set forth in the Engagement Letter that
are due on or before the Closing Date.


      
        
           


        

        
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      5.1.3        Payment of
Expenses.  Payment
of the expenses of preparing this Agreement and the other Loan Documents,
including reasonable attorneys’ fees and costs, the review of any Phase I
environmental site assessments, and any and all other fees due from Borrower to
Administrative Agent.

      


      5.2           Conditions of all Borrowings
and Letters of Credit.  The
obligation of the Lenders to make any Loan (including the initial Loan) or of
the Swing Line Lender to make any Swing Loan or of the L/C Issuer to issue any
Letter of Credit is subject to the satisfaction of all of the following
conditions precedent on the relevant borrowing date:

      


      (a)           Administrative
Agent shall have received a Notice of Borrowing or Conversion/Continuation
requesting an extension of credit;

      


      (b)           The
requested extension of credit shall not cause the aggregate Outstanding Amount
of all Loans and Swing Loans and the Outstanding Amount of all L/C Obligations
to exceed the Availability at such time (and if the requested extension of
credit is for a Swing Loan, such requested extension shall not cause the
aggregate principal amount of all then-outstanding Swing Loans to exceed either
of the limitations contained in Sections 2.2.1(b));

      


      (c)           The
representations and warranties of Borrower set forth in Article 7 of this
Agreement shall be true and correct in all material respects on and as of the
date of such Borrowing with the same force and effect as if made on and as of
such date;

      


      (d)           No
Default or Event of Default shall exist or result from such Borrowing;
and

      


      (e)           If
Borrower has requested issuance of a Letter of Credit, Administrative Agent
shall have received a Letter of Credit Application signed by the account party
(and Borrower, if Borrower is not the account party), and the Fronting Fee for
such Letter of Credit described in Section
2.11.2.

      


      6.           COVENANTS OF
BORROWER.  Borrower
promises to keep each of the following covenants:

      


      6.1           Specific Affirmative
Covenants.

      


      6.1.1        Compliance with
Law.  Guarantor
shall comply with all existing and future laws, regulations, orders and
requirements of, and all agreements with and commitments to, all Governmental
Authorities having jurisdiction over Guarantor or Guarantor’s
business.  Notwithstanding any contrary provision in this Section,
Guarantor shall have a right to contest all existing and future Requirements of
Law before complying therewith.  Borrower and each Permitted
Affiliate, as applicable, shall comply with all existing and future laws
(including Environmental Laws), regulations, orders, building restrictions and
requirements of, and all agreements with and commitments to, all Governmental
Authorities having jurisdiction over Borrower or Borrower’s business or such
Permitted Affiliate or such Permitted Affiliate’s business, as applicable,
including those pertaining to the construction, sale, leasing or financing of
any Unencumbered Asset Pool Property or the environmental condition of any
Unencumbered Asset Pool Property, and with all recorded covenants and
restrictions affecting any Unencumbered Asset Pool Property (all collectively,
the “Requirements”).  Notwithstanding
any contrary provision in this Section, (i) Borrower and each applicable
Permitted Affiliate shall have a right to contest all existing and future
Requirements of Law (other than those relating to Environmental Laws) before
complying therewith, and (ii) Borrower and each Permitted Affiliate shall have a
right to contest all existing and future Requirements relating to Environmental
Laws for one year, before complying therewith, provide that no Unencumbered
Asset Pool Property is in danger of being lost or forfeited.


      
        
           


        

        
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      6.1.2       
Site
Visits.  Borrower,
each Permitted Affiliate and Guarantor shall allow Administrative Agent and
Lenders access to each Unencumbered Asset Pool Property at any reasonable time
upon reasonable written notice by Administrative Agent to Borrower (a) for the
purpose of inspecting the Unencumbered Asset Pool Property, and (b) upon
reasonable belief by Administrative Agent or Lenders of the existence of a
matter that should be investigated, for the purpose of taking soil or
groundwater samples and conducting tests, among other things, to investigate for
the presence of Hazardous Substances.  Borrower, each Permitted
Affiliate and Guarantor shall also allow Administrative Agent to examine, copy
and audit its and their books and records.  Neither Administrative
Agent nor any Lender is under any duty to visit or observe any Unencumbered
Asset Pool Property, and Administrative Agent is under no duty to examine any
books or records.  Any site visit, observation or examination by
Administrative Agent or any Lender shall be solely for the purpose of protecting
Administrative Agent’s and such Lender’s interests and preserving Administrative
Agent’s rights under the Loan Documents.  Neither Administrative Agent
nor any Lender owes a duty of care to protect Borrower, any Permitted Affiliate,
Guarantor or any other Person against, or to inform Borrower, Guarantor, any
Permitted Affiliate, Guarantor, or any other Person of, any adverse condition
affecting any Unencumbered Asset Pool Property, including any defects in the
design or construction of any improvements located on an Unencumbered Asset Pool
Property or the presence of any Hazardous Substances on an Unencumbered Asset
Pool Property.

      


      6.1.3        Insurance.  Borrower
and each Permitted Affiliate, as applicable, shall maintain the following
insurance:

      


      (a)           Special
Form property damage insurance in non-reporting form on each of its Unencumbered
Asset Pool Properties, with a policy limit in an amount not less than the full
insurable value of the improvements located on such property on a replacement
cost basis, including tenant improvements, if any, with a deductible amount, if
any, reasonably satisfactory to Administrative Agent, which insurance shall
cover such risks as are ordinarily insured against by similar
businesses.  The policy shall include a business interruption (or rent
loss, if more appropriate) endorsement in the amount of six months’ principal
and interest payments, taxes and insurance premiums, and any other endorsements
reasonably required by Administrative Agent.  In addition, with
respect to any Unencumbered Development Property, builder’s risk insurance of a
type and in an amount customarily carried in the case of similar construction in
similar locations.  Notwithstanding the foregoing, earthquake
insurance with respect to any Unencumbered Asset Pool Property shall not be
required unless (i) institutional lenders generally require earthquake insurance
for similar types of multifamily real property in the geographic location where
such Unencumbered Asset Pool Property is located, and (ii) such insurance is
generally available at commercially reasonable rates.


      
        
           


        

        
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      (b)           Comprehensive
General Liability coverage with such limits as Administrative Agent may
reasonably require.  This policy shall name Administrative Agent as an
additional insured.  Coverage shall be written on an occurrence basis,
not claims made, and shall cover liability for personal injury, death, bodily
injury and damage to property, products and completed operations.

      


      (c)           Workers’
compensation insurance for all employees of Borrower and each subsidiary in such
amount as is required by law and including employer’s liability insurance, if
required by Administrative Agent.

      


      All
policies of insurance required by Administrative Agent must be issued by
companies reasonably approved by Administrative Agent and otherwise be
reasonably acceptable to Administrative Agent as to amount, forms, risk
coverages and deductibles.  In addition, each policy (except workers’
compensation) must provide Administrative Agent at least 30 days’ prior notice
of cancellation, non-renewal or modification.  If Borrower or a
Permitted Affiliate, as applicable, fails to keep any such coverage in effect
while any Commitment is outstanding, Administrative Agent may procure the
coverage at Borrower’s expense.  Borrower shall reimburse
Administrative Agent, on demand, for all premiums advanced by Administrative
Agent or Lenders, which advances shall be considered to be additional loans to
Borrower hereunder at the Default Rate applicable to Reference Rate
Loans.  Neither Administrative Agent nor any Lender shall, because of
accepting, reasonably disapproving, approving or obtaining insurance, incur any
liability for (i) the existence, nonexistence, form or legal sufficiency
thereof, (ii) the solvency of any insurer, or (iii) the payment of
losses.

      


      6.1.4        Preservation of
Rights.  Borrower
or the applicable Permitted Affiliate shall obtain and preserve all rights,
privileges and franchises necessary or desirable for the operation of each
Unencumbered Asset Pool Property owned by Borrower or such Permitted
Affiliate.  Borrower, Guarantor and each Permitted Affiliate shall
also obtain and preserve all rights, privileges and franchises necessary or
desirable for the conduct of Borrower’s, Guarantor’s and such Permitted
Affiliate’s business.  Either Borrower or the applicable Permitted
Affiliate shall maintain any Unencumbered Asset Pool Property owned by it in
good condition.  Either Borrower or the applicable Permitted Affiliate
shall, at Borrower’s or such Permitted Affiliates sole cost and expense, follow
all recommendations in any asbestos survey conducted by an expert selected by
Borrower or such Permitted Affiliate and approved by Administrative Agent with
respect to any Unencumbered Asset Pool Property owned by Borrower or such
Permitted Affiliate regarding safety conditions for, and maintenance of, any
asbestos containing materials, including any recommendation to institute an
O&M Plan.

      


      6.1.5        Taxes.  Borrower,
Guarantor and each Permitted Affiliate shall make timely payments of all local,
state and federal taxes; provided, however,
that none of Borrower, Guarantor or any Permitted Affiliate need pay any such
taxes (a) that it is contesting in good faith and by appropriate proceedings
that were promptly commenced and are being diligently pursued, and (b) for which
Borrower , Guarantor or such Permitted Affiliate, as applicable, has created an
appropriate reserve or other provision as required by GAAP, and no material
property of Borrower, Guarantor or such Permitted Affiliate is in imminent
danger of being lost or forfeited.


      
        
           


        

        
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      6.2           Payment of
Expenses

      


      (a)           Borrower
shall pay or reimburse Administrative Agent, within fifteen days after demand,
for (i) the costs of electronic distribution services (such as SyndTrak or
IntraLinks) incurred in connection with the closing and administration of the
transactions contemplated by the Loan Documents (which costs with respect to
administration are expected to be approximately $1,500 per year and which shall
in no event exceed $2,500 per year); and (ii) costs, expenses and other amounts
described in Section
10.4(a) hereof.  Such costs and expenses shall include fees for
due diligence and environmental services (including only those services
performed by Administrative Agent or Lender employees and the cost of those
services that Administrative Agent or any Lender incurs because it believes that
such services are required), electronic distribution service charges, legal fees
and expenses of counsel, counsel’s travel expenses associated with any
syndication, lender meetings or other conferences and any other reasonable fees
and costs for services, regardless of whether such services are furnished by
Administrative Agent’s or any Lender’s employees or by independent
contractors.

      


      (b)           Borrower
shall pay or reimburse Administrative Agent for the benefit of each Lender
within fifteen days after demand for all costs and expenses, including all
electronic distribution service, legal, audit and review fees and expenses
(including the allocated cost of such services by Administrative Agent’s
employees) incurred by Administrative Agent in connection with the enforcement
or preservation of any rights or remedies under any Loan Document with respect
to a Default or an Event of Default (including any “workout” or restructuring of
the Loans, and any bankruptcy, insolvency or other similar proceeding, judicial
proceeding or arbitration).

      


      Borrower
acknowledges that none of the fees described in Section 2.11 include
amounts payable by Borrower under this Section
6.2.  All such sums incurred by Administrative Agent or any
Lender and not immediately reimbursed by Borrower within fifteen days of written
notice by Administrative Agent shall be considered an additional loan to
Borrower hereunder at the Default Rate applicable to Reference Rate
Loans.  The agreements in this Section shall survive the termination
of the Commitments and repayment of all other Obligations.

      


      6.3           Financial and Other
Information; Certification.  Borrower
shall provide to Administrative Agent the following financial information and
statements for Guarantor and its consolidated subsidiaries prepared on a
consolidated basis:

      


      (a)           Within
90 days after each fiscal year end, the annual audited consolidated financial
statements of Guarantor prepared in accordance with GAAP, and accompanied by the
opinion of KPMG LLP or another nationally recognized Certified Public Accountant
stating that such consolidated financial statements present fairly the financial
positions of Guarantor for the periods indicated in conformity with GAAP applied
on a basis consistent with prior years and are not subject to any “going
concern” or like qualification or exception or any qualification or exception as
to the scope of such audit.

      


      (b)           Within
45 days after the end of each of the first three fiscal quarters, quarterly
unaudited financial statements of Guarantor, including cash flow statements,
certified by a Responsible Officer of Guarantor, and (to the extent
appropriate), be prepared on a consolidated basis according to
GAAP.


      
        
           


        

        
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      (c)           Within
120 days of Guarantor’s fiscal year end, Guarantor’s annual report, certified by
an appropriate Responsible Officer as being complete and correct in all material
respects.

      


      (d)           If
requested by Administrative Agent, copies of Borrower’s and Guarantor’s federal
income tax return (with all schedule K-l’s attached), within fifteen days of
filing, and, if requested by Administrative Agent, copies of any extensions of
the filing date, certified by an appropriate Responsible Officer as being
complete and correct in all material respects.

      


      (e)           Within
45 days after the end of each calendar quarter, in form and substance reasonably
satisfactory to Administrative Agent: (i) an operating statement and
rent roll for each Unencumbered Stabilized Asset Property, and (ii) if requested
by Administrative Agent, a summary of all construction and development costs
incurred in connection with each Unencumbered Development Property during the
last calendar quarter and from the date of the acquisition of such property,
plus a budget for expected future construction and development costs to complete
construction of such property (including a summary of revisions made since the
last budget was delivered for such property), and a construction timetable for
such property (including an explanation of extensions to such construction
timetable made since the last such timetable was delivered for such
property).

      


      (f)          
 Copies of Guarantor’s Form 10-K Annual Report within 90 days of its fiscal
year end.

      


      (g)           Copies
of Guarantor’s Form 10-Q Quarterly Report within 45 days after the end of each
calendar quarter except fiscal year end and copies of all statements, reports
and notices sent or made available generally by Borrower or Guarantor to their
respective security holders at the time they are so sent or made available, any
financial statements contained therein to be certified by the chief financial
officer of Borrower, and (to the extent appropriate) to be prepared on a
consolidated basis according to GAAP and to include Borrower and
Guarantor.

      


      (h)           Within
60 days of the end of each of the first three fiscal quarters and in addition
within 90 days of the end of each fiscal year, a Compliance Certificate of
Borrower signed and certified by an authorized financial officer of Borrower (i)
setting forth the information and computations (in sufficient detail) to
determine the Gross Asset Value, the Total Liabilities, the Unsecured Debt, the
Unencumbered Stabilized Asset Property Value, the Unencumbered Development
Property Value, the Unencumbered Asset Pool Value, the Debt Service on Unsecured
Debt, the EBITDA, the Fixed Charges, the Secured Recourse Debt and to establish
that Borrower is in compliance with all financial covenants set forth in this
Agreement at the end of the period covered by the financial statements then
being furnished, (ii) stating specifically that the Outstanding Amount of Loans
and Swing Loans plus the Outstanding Amount of L/C Obligations is less than or
equal to the Availability, and (iii) setting forth whether there existed as of
the date of the most recent financial statements of Guarantor and its
consolidated subsidiaries and whether there exists as of the date of the
certificate, any Default or Event of Default under this Agreement and, if any
such Default or Event of Default exists, specifying the nature thereof and the
action Borrower is taking and proposes to take with respect
thereto.


      
        
           


        

        
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      (i)         
  Within 30 days after the end of fiscal year, Borrower’s and
Guarantor’s one-year calendar budget (showing month-by-month
projections).

      


      (j)          
 Within 90 days after the end of each fiscal year, an annual business plan
for Borrower and Guarantor in form and content reasonably acceptable to
Administrative Agent.

      


      (k)           Any
other financial or other information concerning Borrower’s, any Permitted
Affiliate’s or Guarantor’s affairs and properties as Administrative Agent may
reasonably request, to be furnished promptly upon such request.

      


      Documents
required to be delivered pursuant to Section 6.3(f) or
(g) (to the
extent any such documents are included in materials otherwise filed with the
SEC) may be delivered electronically and if so delivered, shall be deemed to
have been delivered on the date (i) on which Borrower posts such documents, or
provides a link thereto on Borrower’s website on the Internet at its website
address set forth on the signature page hereof (or such other website address as
notified to Administrative Agent and the Lenders); or (ii) on which such
documents are posted on Borrower’s behalf on an Internet or intranet website, if
any, to which each Lender and Administrative Agent have access (whether a
commercial, third-party website or whether sponsored by Administrative Agent);
provided
that:  (A) upon request by Administrative Agent, Borrower shall
deliver paper copies of such documents to Administrative Agent until a written
request to cease delivering paper copies is given by Administrative Agent, and
(B) Borrower shall notify (which may be by facsimile or electronic mail)
Administrative Agent of the posting of any such documents and provide to
Administrative Agent by electronic mail electronic versions (i.e., soft copies) of
such documents. Notwithstanding the foregoing in every instance Borrower shall
be required to provide paper copies of the Compliance Certificates,
Administrative Agent shall have no obligation to request the delivery or to
maintain copies of the documents referred to above, and in any event shall have
no responsibility to monitor compliance by Borrower with any such request for
delivery, and each Lender shall be solely responsible for maintaining its copies
of such documents.

      


      Each of
Borrower and, by its execution of its consent hereto, Guarantor and each
Permitted Affiliate, hereby acknowledges that (a) Administrative Agent and/or
the Arranger will make available to the Lenders and the L/C Issuer materials
and/or information provided by or on behalf of Borrower, Guarantor or any
Permitted Affiliate hereunder (collectively, “Borrower Materials”)
by posting Borrower Materials on SyndTrak or IntraLinks or another similar
electronic system (the “Platform”), and (b)
certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not
wish to receive material non-public information with respect to Borrower,
Guarantor, the Permitted Affiliates or their securities) (each, a “Public
Lender”).  Each of Borrower and, by its execution of its
consent hereto, Guarantor and each Permitted Affiliate, agrees that (w) all
Borrower Materials that are to be made available to Public Lenders shall be
clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that
the word “PUBLIC” shall appear prominently on the first page thereof; (x) by
marking Borrower Materials “PUBLIC,” Borrower, Guarantor and each Permitted
Affiliate shall be deemed to have authorized Administrative Agent, the Arranger,
the L/C Issuer and the Lenders to treat such Borrower Materials as not
containing any material non-public information with respect to Borrower,
Guarantor, the Permitted Affiliates or their securities for purposes of United
States Federal and state securities laws (provided, however, that to the
extent such Borrower Materials constitute Information, they shall be treated as
set forth in Section
10.6); (y) all Borrower Materials marked “PUBLIC” are permitted to be
made available through a portion of the Platform designated “Public Investor;”
and (z) Administrative Agent and the Arranger shall be entitled to treat any
Borrower Materials that are not marked “PUBLIC” as being suitable only for
posting on a portion of the Platform not designated “Public Investor.”
Notwithstanding the foregoing, neither Borrower nor Guarantor or any Permitted
Affiliate shall be under any obligation to mark any Borrower Materials
“PUBLIC.”


      
        
           


        

        
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      6.4           Notices.  Borrower
shall promptly notify Administrative Agent in writing of any knowledge that any
officer of Borrower, any Permitted Affiliate or Guarantor has of:

      


      (a)           any
litigation affecting Borrower, any Permitted Affiliate, Guarantor, any
Unencumbered Asset Pool Property, and/or any subsidiary or affiliate of Borrower
or Guarantor that directly owns any Unencumbered Asset Pool Property or any
development property or whose financial results are consolidated with those of
Borrower or Guarantor for reporting purposes, in each case where the aggregate
amount at risk or at issue (including litigation costs and attorneys’ fees and
expenses, but excluding claims which, in Administrative Agent’s reasonable
judgment, are expected to be covered by insurance) exceeds: (l) in the case of
litigation affecting an Unencumbered Asset Pool Property, an aggregate amount of
$10,000,000, or (2) in the case of litigation affecting Borrower, Guarantor, any
Permitted Affiliate or any such subsidiary or affiliate of Borrower or
Guarantor, an aggregate amount of $50,000,000;

      


      (b)           any
written notice from any Governmental Authority having jurisdiction thereover
that any property or Borrower’s, any Permitted Affiliate’s or Guarantor’s
business fails in any material respect to comply with any applicable Law
(including any Environmental Law), regulation or court order, where the failure
to comply could have a material adverse effect on Borrower, such Permitted
Affiliate or Guarantor;

      


      (c)           any
material adverse change in the physical condition of any Unencumbered Asset Pool
Property or Borrower’s, any Permitted Affiliate’s or Guarantor’s financial
condition or operations, or any other circumstance that materially adversely
affects Borrower’s or a Permitted Affiliate’s intended use of any Unencumbered
Asset Pool Property or Borrower’s ability to repay the Loan;

      


      (d)           any
Default or Event of Default, and any failure to comply with this Agreement or
any other Loan Document or any other material agreement to which Borrower,
Guarantor or any Permitted Affiliate is a party, where such noncompliance has a
material adverse effect on the ability of Borrower, Guarantor or any Permitted
Affiliate to perform their respective obligations under the terms of the Loan
Documents;

      


      (e)           any
change in Borrower’s or Guarantor’s or any Permitted Affiliate’s name, legal
structure, jurisdiction of formation, place of business to a state other than
the State of California, or chief executive office to a state other than the
State of California if Borrower or Guarantor has more than one place of
business;


      
        
           


        

        
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      (f)        
   any actual or threatened condemnation of any portion of any
Unencumbered Asset Pool Property given in writing to Borrower or any Permitted
Affiliate, as the case may be, by any Governmental Authority, or any loss of or
substantial damage to any Unencumbered Asset Pool Property;

      


      (g)           any
notice of any cancellation, alteration or non-renewal of any insurance coverage
maintained with respect to any Unencumbered Asset Pool Property; or

      


      (h)           any
written notice received by Borrower from any Governmental Authority that any
Unencumbered Asset Pool Property, or any use activity, operation or maintenance
thereof or thereon, is not in compliance with any Law, including any
Environmental Laws, and including notice of (i) any and all enforcement,
cleanup, removal or other governmental or regulatory actions instituted,
completed or threatened against Borrower or any Permitted Affiliate or any of
their respective Unencumbered Asset Pool Properties pursuant to any applicable
Environmental Laws, and (ii) any environmental or similar condition on any real
property adjoining or in the vicinity of any Unencumbered Asset Pool Property of
Borrower or any Permitted Affiliate that could reasonably be anticipated to
cause the applicable Unencumbered Asset Pool Property or any part thereof to be
subject to any restrictions on the ownership, occupancy, transferability or use
of such Unencumbered Asset Pool Property under any Environmental
Laws.

      


      6.5           Negative
Covenants.

      


      6.5.1        Limitations on Certain
Activities.  Without
the prior written consent of the Required Lenders (or Administrative Agent at
the request of the Required Lenders), which consent shall not be unreasonably
withheld or delayed:

      


      (1)           Borrower
shall not engage in any business activities that would result in less than 70%
of the Gross Asset Value being derived from multifamily residential
apartments;

      


      (2)           other
than in the ordinary course of Borrower’s business, Borrower shall not lease all
or a substantial part of Borrower’s business or Borrower’s assets;

      


      (3)           neither
Borrower nor Guarantor shall enter into or invest in any consolidation, merger,
pool, syndicate or other combination unless Borrower or Guarantor, as
applicable, is the surviving entity and control of Borrower does not
change.

      


      (4)           the
legal structure of Borrower shall not change from a limited partnership that is
an operating partnership whose sole general partner is Guarantor, the legal
structure of Guarantor shall not change from a publicly traded real estate
investment trust under the provisions of Internal Revenue Code Sections 856 and
857, and the legal structure of Borrower and Guarantor shall not change from a
so-called up-REIT;


      
        
           


        

        
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      (5)           Borrower’s,
Guarantor’s or any Permitted Affiliate’s jurisdiction of formation, place of
business, or chief executive office (if Borrower, Guarantor or such Permitted
Affiliate has more than one place of business) shall not change except upon 30
days’ prior written notice to Administrative Agent;

      


      (6)           Borrower’s
general partner shall not change from Guarantor; and

      


      (7)           Guarantor
shall not suffer a change in its executive management such that Keith Guericke
is no longer chief executive officer and he is not replaced by Michael J.
Schall, George M. Marcus is no longer chairman of the board of directors or
Michael J. Schall is no longer chief operating officer (unless he has become
chief executive officer), unless such executive management is replaced by
parties reasonably acceptable to the Required Lenders within 180
days.

      


      6.5.2           Acquisition
Down-REITs.  Borrower
and Guarantor shall not in any case:

      


      (1)           form
additional down-REITs for property acquisitions (an “Acquisition
down-REIT”) unless they comply on an on-going basis with each of the
following conditions:

      


      (i)         
  such Acquisition down-REIT is a limited partnership or limited
liability company, and EMC or any wholly owned subsidiary of Borrower or
Guarantor shall be the sole general partner of any such partnership or the sole
managing member of such limited liability company;

      


      (ii)           Guarantor
and/or Borrower and/or EMC shall have effective management control of each
Acquisition down-REIT and each property owned by such Acquisition down-REIT;
and

      


      (iii)          limited
partners or members of such Acquisition down-REIT shall receive only partnership
units or membership interests in the Acquisition down-REIT and/or cash for value
contributed.

      


      (2)           liquidate
or dissolve Borrower’s or Guarantor’s business;

      


      (3)           liquidate
or dissolve the business of any Permitted Affiliate, unless prior to or
contemporaneously with such liquidation or dissolution, (x) all of the
Unencumbered Asset Pool Property owned by such Permitted Affiliate is removed
from the Unencumbered Asset Pool by Borrower pursuant to Section 4.1(b), (y)
such Unencumbered Asset Pool Property is no longer included in the calculation
of Availability hereunder, (z) after the removal of such Unencumbered Asset Pool
Property, the aggregate Outstanding Amount of Loans and Swing Loans plus the
Outstanding Amount of L/C Obligations will be less than or equal to the
Availability and no Event of Default exists); or

      


      (4)           dispose
of all or substantially all of Borrower’s or Guarantor’s business or of
Borrower’s or Guarantor’s assets or the business or assets of any Permitted
Affiliate (with the exception of a Permitted Affiliate that owns only one asset,
in which case the business or assets of such Permitted Affiliate may disposed of
as long as, prior to or contemporaneously with such disposition, (x) all of the
Unencumbered Asset Pool Property owned by such Permitted Affiliate is removed
from the Unencumbered Asset Pool by Borrower pursuant to Section 4.1(b), (y)
such Unencumbered Asset Pool Property is no longer included in the calculation
of Availability hereunder, (z) after the removal of such Unencumbered Asset Pool
Property, the aggregate Outstanding Amount of Loans and Swing Loans plus the
Outstanding Amount of L/C Obligations will be less than or equal to the
Availability, the Unencumbered Development Property Value will not exceed 25% of
the Unencumbered Asset Pool Value, and no Event of Default
exists).


      
        
           


        

        
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      6.6           Type of Business;
Development Covenants.  Borrower
shall own, manage, finance, lease and/or operate as an owner, developer and/or
asset manager multifamily residential properties, and all of Borrower’s other
business activities and investments shall be incidental thereto, with the
exception of the investments described in clause (e) below.  Guarantor
and its consolidated subsidiaries shall not own at any time, on a consolidated
basis:

      


      (a)           entitled
and unentitled land,

      


      (b)           development
properties,

      


      (c)           Joint
Venture Investments,

      


      (d)           Capital
Interests in Acquisition down-REITs, and

      


      (e)           real
estate assets (other than multifamily residential properties), or investments
in, or loans to, companies that own and/or develop real estate (other than
multifamily residential properties),

      


      the value
of which exceeds, in the aggregate for all assets described in clauses (a)-(e)
above, 35% of Gross Asset Value, or in the aggregate for the assets described in
clause (a) above, 10% of Gross Asset Value, or in the aggregate for the assets
described in clause (b) above, 25% of Gross Asset Value.

      


      For the
purpose of calculating the value for assets in clauses (a) and (b) above,
projects that have not yet attained a stabilized occupancy (which, for this
purpose only, shall be 90% occupancy) shall be valued at 100% of the projected
total cost of the project (multiplied, if such project is owned by a Joint
Venture, by Borrower’s Capital Interest in such Joint
Venture).  Projects that attain 90% occupancy shall no longer be
considered for the purpose of calculating the development limits contained in
this Section
6.6.

      


      6.7           Performance of
Acts.  Upon
request by Administrative Agent, Borrower, Guarantor and each Permitted
Affiliate shall perform all acts required of them which may be reasonably
necessary or advisable to carry out the intent of the Loan
Documents.

      


      6.8           Keeping Guarantor
Informed.  Borrower
shall keep Guarantor and each Permitted Affiliate (and any other Person giving a
guaranty to Administrative Agent and Lenders with regard to the Loans), in its
capacity as a guarantor, informed of Borrower’s financial condition and business
operations and all other circumstances that may affect Borrower’s ability to pay
or perform its obligations under the Loan Documents.  In addition,
Borrower shall deliver to Guarantor, each Permitted Affiliate and any other
guarantor all of the financial information required to be furnished to
Administrative Agent hereunder.


      
        
           


        

        
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      6.9           Maximum Total Liabilities to
Gross Asset Value.  Total
Liabilities at the end of each calendar quarter shall not exceed 60% of Gross
Asset Value at such time.

      


      6.10         Debt Ratios.  (a) The
amount of Unsecured Debt at the end of each calendar quarter shall not exceed
60% of the Unencumbered Asset Pool Value at such time; (b) the Outstanding
Amount of all Loans and Swing Loans plus the Outstanding Amount of all L/C
Obligations shall not exceed the Availability at such time; and (c) the amount
of Secured Recourse Debt at the end of each calendar quarter shall not exceed
10% of the Gross Asset Value at such time.

      


      6.11         Fixed Charge Coverage
Ratio.  The
ratio determined at the end of each calendar quarter of (a) EBITDA for the four
consecutive calendar quarter period ending on such determination date divided by
(b) the amount of Fixed Charges for such four calendar quarter period shall not
be less than 1.50:1.0.

      


      6.12         Debt Service Coverage
Ratio.  The
ratio determined at the end of each calendar quarter of (a) the Net Operating
Income for the Unencumbered Asset Pool for the four consecutive calendar quarter
period ending on such date divided by (b) the amount of Debt Service on
Unsecured Debt for such four calendar quarter period shall not be less than
1.75:1.0.

      


      6.13         Maximum Quarterly
Dividends.  Guarantor
shall not declare or pay any distributions or dividends except from cash flow
available for distributions or dividends and earned during the immediately
preceding fiscal year, and in any event not in excess of 95% of Funds From
Operations on a rolling four calendar quarter basis.  The total of
common and preferred stock dividends in any calendar quarter may exceed Funds
From Operations for the quarter only to the extent necessary for Guarantor to
retain its status as a real estate investment trust under the provisions of
Internal Revenue Code Sections 856 and 857.  Notwithstanding the
foregoing, during the continuance of any Event of Default, aggregate
distributions shall not exceed the minimum amount that Guarantor must distribute
to its shareholders in order to qualify as a real estate investment trust under
the provisions of Internal Revenue Code Sections 856 and 857.

      


      6.14         Negative Pledge; Limitations
on Affiliate Indebtedness.

      


      (a)           Neither
Borrower nor any Permitted Affiliate shall create, assume, or allow any Lien
(including any judicial lien) on any Unencumbered Asset Pool Property, and
neither Borrower nor Guarantor shall create, assume or allow any Lien (including
any judicial lien) on Borrower’s or Guarantor’s direct or indirect ownership
interests in any Permitted Affiliate, except for Permitted Liens.

      


      (b)           Neither
Borrower nor any Permitted Affiliate shall create, assume or allow any negative
pledge agreement in favor of any other Person affecting or relating to any
Unencumbered Asset Pool Property.  In addition, neither Borrower,
Guarantor nor any Permitted Affiliate (in this context, an “Obligor”) shall incur
any Indebtedness owing to Borrower, Guarantor, any Permitted Affiliate or any
other Affiliate (in this context, a “Creditor”) that is in
excess of $3,000,000 owing by an Obligor to any Creditor or in excess of
$10,000,000, in the aggregate, owing by the Obligors to any one or more
Creditors, unless such Indebtedness has been subordinated in right of payment to
the full and prior repayment to Administrative Agent and Lenders of the
Obligations pursuant to a subordination agreement in form and substance
acceptable to Administrative Agent in its reasonable discretion (an “Approved Subordination
Agreement”).


      
        
           


        

        
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      (c)           Borrower
and each Permitted Affiliate shall have the right to contest in good faith by
appropriate legal or administrative proceeding the validity of any prohibited
Lien affecting its properties so long as (i) no Event of Default exists and is
continuing, (ii) Borrower or such Permitted Affiliate, as applicable, first
deposits with Administrative Agent a bond or other security satisfactory to
Administrative Agent in the amount reasonably required by Administrative Agent;
(iii) Borrower or such Permitted Affiliate, as applicable, immediately commences
its contest of such Lien and continuously pursues the contest in good faith and
with due diligence; (iv) foreclosure of the Lien is stayed; and (v) Borrower or
such Permitted Affiliate, as applicable, pays any judgment rendered for the Lien
claimant or other third party, unless such judgment has been stayed as the
result of an appeal, within 30 days after the entry of the
judgment.  Borrower or such Permitted Affiliate, as applicable, will
discharge or elect to contest and post an appropriate bond or other security
within 30 days of written demand by Administrative Agent.

      


      6.15         Change in Ownership of
Borrower or Management of the Unencumbered Asset Pool Property.  Borrower
shall not cause, permit or suffer (a) any change of the general partner of
Borrower, (b) any change in the control of Guarantor (whether by tender offer
for a majority of the outstanding shares of Guarantor, a merger in which
Guarantor is not the surviving entity, or otherwise), (c) any Permitted
Affiliate to be less than wholly-owned (directly or indirectly) by Borrower or
Guarantor, as long as any Unencumbered Asset Pool Property owned by such
Permitted Affiliate is included in the Unencumbered Asset Pool and the
calculation of Availability; or (d) any Person other than Guarantor or an
Affiliate of Guarantor to manage an Unencumbered Asset Pool
Property.  Notwithstanding the foregoing, a Permitted Affiliate or,
subject to the prior written consent of the Required Lenders [(except in the
case of R.A. Snyder Properties, Inc., and Con Am Management Corporation, for
which no prior written consent shall be required)], which consent shall not be
unreasonably withheld or delayed, an independent third-party, may manage an
Unencumbered Asset Pool Property following the addition of such property into
the Unencumbered Asset Pool pursuant to Section
4.

      


      6.16         Books and
Records.  Each of
Guarantor, Borrower and each Permitted Affiliate and each of their respective
subsidiaries shall maintain adequate books and records (provided that, with respect to
the Permitted Affiliates and subsidiaries, such books and records shall mean its
income and expense statements).

      


      6.17         Audits.  Borrower,
Guarantor and each Permitted Affiliate shall allow Administrative Agent and its
agents to inspect its properties and examine, audit and make copies of its books
and records at any reasonable time upon reasonable notice to
Borrower.  If any of the properties, books or records of Borrower,
Guarantor or any Permitted Affiliate are in the possession of a third party,
Borrower, Guarantor or such Permitted Affiliate, as applicable, shall authorize
that third party to permit Administrative Agent or its agents to have access to
perform inspections or audits and to respond to Administrative Agent’s requests
for information concerning such properties, books and records.


      
        
           


        

        
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      6.18         Cooperation.  Borrower,
Guarantor and each Permitted Affiliate shall take any action reasonably
requested by Administrative Agent to carry out the intent of this
Agreement.

      


      6.19         ERISA Plans.  Borrower
shall give prompt written notice to Administrative Agent of the occurrence of
any ERISA Event.

      


      6.20         Use of Proceeds.  Borrower
shall use the proceeds of the Loan only for (a) financing for acquisition,
development and/or redevelopment of real and personal property, (b) letters
of credit, (c) working capital in Borrower’s business, and (d) other purposes
permitted by Borrower’s organizational documents as they appear as of the
Closing Date.

      


      6.21         Use of Proceeds – Ineligible
Securities.  Borrower
shall not use any proceeds of the Loans, directly or indirectly, to purchase or
carry, or reduce or retire any loan incurred to purchase or carry, any “Margin
Stock” (within the meaning of Regulation U of the Board of Governors of the
Federal Reserve System) or to extend credit to others for the purpose of
purchasing or carrying any Margin Stock.

      


      7.           
 Representations
and Warranties.  When
Borrower and Guarantor sign this Agreement, and until Administrative Agent and
Lenders are repaid in full.  Borrower and Guarantor make the following
representations and warranties.  Each request for an extension of
credit constitutes a renewed representation and warranty.

      


      7.1           Organization of Borrower,
Guarantor and each Permitted Affiliate.  Borrower
is a limited partnership duly formed, validly existing and in good standing
under the laws of California.  Guarantor and each Permitted Affiliate
is an entity duly organized, validly existing and in good standing under the
laws of its state of formation or organization.

      


      7.2           Authorization.  The
execution and compliance with this Agreement and each Loan Document to which
Borrower, Guarantor and each Permitted Affiliate is a party are within such
Person’s powers, have been duly authorized, and do not conflict with any of such
Person’s organizational or formation papers.

      


      7.3           Enforceable
Agreement.  This
Agreement is a legal, valid and binding agreement of Borrower, enforceable
against Borrower in accordance with its terms, and it and any Loan Document to
which it, Guarantor or any Permitted Affiliate is a party, when executed and
delivered, will be similarly legal, valid, binding and enforceable, except as
the same may be limited by insolvency, bankruptcy, reorganization, or other laws
relating to or affecting the enforcement of creditors’ rights or by general
equitable principles.

      


      7.4           Good Standing.  In each
state in which Borrower, Guarantor and each Permitted Affiliate does business,
it is properly licensed, in good standing, and, where required, in compliance
with fictitious name statutes.

      


      7.5           No Conflicts.  Neither
Borrower, Guarantor, any Permitted Affiliate, nor the Unencumbered Asset Pool
Property, are in violation of, nor do the terms of this Agreement or any other
Loan Document conflict with, any law (including any Environmental Laws),
regulation or ordinance, any order of any court or governmental entity, any
organizational documents of Borrower or Guarantor, or any covenant or agreement
affecting Borrower, Guarantor or any Permitted Affiliate or the Unencumbered
Asset Pool Property, which has a material adverse effect on Borrower, Guarantor
or any Permitted Affiliate or the Unencumbered Asset Pool
Property.


      
        
           


        

        
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      7.6           Financial
Information.  All
financial information which has been and will be delivered to Administrative
Agent, including all information relating to the financial condition of
Borrower, Guarantor, any Permitted Affiliate and the Unencumbered Asset Pool
Property, did as of its date fairly and accurately represent the financial
condition being reported on.  All such information was and will be
prepared in accordance with GAAP, unless otherwise noted.  Since June
30, 2009, there has been no material adverse change in the financial condition
of Borrower, Guarantor, any Permitted Affiliate or the Unencumbered Asset Pool
Property.

      


      7.7           Borrower Not a “Foreign
Person”.  Borrower
is not a “foreign person” within the meaning of Section 1445(f)(3) of the
Internal Revenue Code of 1986, as amended from time to time.

      


      7.8           Lawsuits.  There
are no lawsuits, actions, tax claims, investigations, proceedings, or other
disputes, pending or threatened, in any court or before any arbitrator or
Governmental Authority that purport to affect Borrower, Guarantor, any
subsidiaries or affiliates of Borrower or Guarantor, any Unencumbered Asset Pool
Property, or any transaction contemplated by this Agreement or any other Loan
Document that will have a material adverse effect on Borrower, Guarantor, any
Unencumbered Asset Pool Property, or any subsidiaries or affiliates of Borrower
or Guarantor, or any transaction contemplated by this Agreement or any other
Loan Document, or on the ability of Borrower, Guarantor or any of their
subsidiaries or affiliates, to perform their respective obligations under the
Loan Documents,

      


      7.9           Permits,
Franchises.  Borrower,
Guarantor and each Permitted Affiliate possesses all permits, memberships,
franchises, contracts and licenses required and all trademark rights, trade name
rights, patent rights and fictitious name rights necessary to enable it to
conduct the business in which it is now engaged.

      


      7.10         Other
Obligations.  None of
Borrower, Guarantor or any Permitted Affiliate is in material default (taking
into account all applicable cure periods, if any) on any material obligation for
borrowed money, any purchase money obligation or any other material lease,
commitment, contract, instrument or obligation.

      


      7.11         Income Tax
Returns.  Except
as otherwise disclosed to Administrative Agent in a writing referring to this
Section 7.11,
Borrower has no knowledge of any pending assessments or adjustments of the
income tax of Borrower, Guarantor or any Permitted Affiliate in an amount in
excess $500,000 for any year, individually or in the aggregate.

      


      7.12         No Event of
Default.  There is
no event which is, or with notice or lapse of time or both would be, an Event of
Default under this Agreement.


      
        
           


        

        
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      7.13         ERISA Plans.

      


      (a)           Borrower
has fulfilled its obligations, if any, under the minimum funding standards of
ERISA and the Code with respect to each Plan and is in compliance in all
material respects with the presently applicable provisions of ERISA and the
Code, and has not incurred any liability with respect to any Plan under Title IV
of ERISA.

      


      (b)           No
Reportable Event has occurred.

      


      (c)           No
action by Borrower to terminate or withdraw from any Plan has been taken and no
notice of intent to terminate a Plan has been filed under Section 4041 of
ERISA.

      


      (d)           No
proceeding has been commenced with respect to a Plan under Section 4042 of
ERISA, and no event has occurred or condition exists which might constitute
grounds for the commencement of such a proceeding.

      


      7.14         Location of
Borrower.  Borrower’s
place of business (or, if Borrower has more than one place of business, its
chief executive office) is located at the address listed under Borrower’s
signature on this Agreement or at such other place as to which Borrower has
notified Administrative Agent in writing.

      


      7.15         No Required Third
Party/Governmental Approvals.  No
approval, consent, exemption, authorization, or other action by, or notice to,
or filing with any third party or any Governmental Authority, is necessary or
required in connection with the execution, delivery or performance of this
Agreement or any other Loan Document to which Borrower, Guarantor or any
Permitted Affiliate is a party, or the enforcement of any such agreements
against Borrower, Guarantor or any Permitted Affiliate.

      


      7.16         Regulated
Entities.  Neither
Borrower nor any Person controlling Borrower is an “Investment Company” within
the meaning of the Investment Company Act of 1940; or subject to regulation
under the Public Utility Holding Company Act of 1935, the Federal Power Act, the
Interstate Commerce Act, any state public utilities code, or any other federal
or state statute or regulation limiting its ability to incur
Indebtedness.

      


      
        	
                8.

              	
                DEFAULT AND
      REMEDIES.

              


      

      


      8.1           Events of
Default.  Borrower
will be in default under this Agreement upon the occurrence of any one or more
of the following events (“Event of
Default”):

      


      (a)           Borrower
fails to make any payment due hereunder, or fails to make any payment demanded
by Administrative Agent under any Loan Document, on the earlier of (i) the
Maturity Date or (ii) within fifteen days after (x) the date when due or (y) if
the payment is unscheduled, the date when payment is demanded by Administrative
Agent; or

      


      (b)           Borrower
fails to perform or observe any term, covenant or agreement contained in (i) any
of Sections
6.13 or 6.21; or (ii) any of
Sections 6.1.3, 6.3,
6.5, 6.14 or 6.17 and does not
cure that failure within fifteen days after written notice from Administrative
Agent; or (iii) Section 6.4 and does
not cure that failure within fifteen days after Borrower’s Knowledge of such
failure; or (iv) Section 6.15 and does
not cure such failure within fifteen days after the occurrence of such failure;
or (v) any of Sections
6.9, 6.10, 6.11 or 6.12 and does not
cure that failure within 45 days after the end of the fiscal quarter in which
such Default arose; or


      
        
           


        

        
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      (c)           Borrower
fails to comply with any covenant contained in this Agreement other than those
referred to in clauses (a) and (b), and does not either cure that failure within
30 days after written notice from Administrative Agent, or, if the default
cannot be cured in 30 days, Borrower fails to promptly commence cure (in any
event, within ten days after receipt of such notice), and thereafter diligently
prosecute such cure to completion, and complete such cure within 90 days after
receipt of such notice; or

      


      (d)           (i) Borrower,
any Permitted Affiliate or Guarantor institutes or consents to the institution
of any Insolvency Proceeding, makes an assignment for the benefit of creditors
or applies for or consents to the appointment of any receiver, trustee,
custodian, conservator, liquidator, rehabilitator or similar officer for it or
for all or any material part of its property; (ii) any receiver, trustee,
custodian, conservator, liquidator, rehabilitator or similar officer is
appointed without the application or consent of Borrower, any Permitted
Affiliate or Guarantor and the appointment continues undischarged or unstayed
for 60 calendar days; (iii) any Insolvency Proceeding relating to Borrower, any
Permitted Affiliate or Guarantor or to all or any material part of its property
is instituted without the consent of such Person and continues undismissed or
unstayed for 60 calendar days, or an order for relief is entered in any such
proceeding; (iv) Borrower, any Permitted Affiliate or Guarantor becomes unable
or admits in writing its inability or fails generally to pay its debts as they
become due, or (b) any writ or warrant of attachment or execution or similar
process is issued or levied against all or any material part of the property of
Borrower, any Permitted Affiliate or Guarantor and is not released, vacated or
fully bonded within 30 days after its issue or levy; or

      


      (e)           Borrower,
any Permitted Affiliate or Guarantor dissolves or liquidates; or

      


      (f)          
 Any representation or warranty made or given in any of the Loan Documents
proves to be false or misleading in any material respect; or

      


      (g)           Guarantor
or any Permitted Affiliate breaches or fails to comply with any covenant
contained in this Agreement or any other Loan Document applicable to it, other
than those defaults included within clause (b) above, and does not cure that
failure within 30 days after written notice from Administrative Agent, or, if
the default cannot be cured in 30 days, Guarantor or such Permitted Affiliate
fails to promptly commence cure (in any event, within ten days after receipt of
such notice), and thereafter diligently prosecute such cure to completion, and
complete such cure within 90 days after receipt of such notice; or

      


      (h)           A
defined event of default occurs under any of the Loan Documents; or

      


      (i)         
  A final non-appealable judgment or order is entered against
Borrower, any Permitted Affiliate or Guarantor that materially adversely affects
(i) Borrower’s or such Permitted Affiliate’s intended use of one or more of the
Unencumbered Asset Pool Properties (subject to Borrower’s right to remove any
Unencumbered Asset Pool Property from the Unencumbered Asset Pool pursuant to
Section 4.1
(b)) or (ii) Borrower’s, any Permitted Affiliate’s or Guarantor’s ability
to repay the Loans; or


      
        
           


        

        
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      (j)          
 Borrower, Guarantor or any Permitted Affiliate fails, after the expiration
of applicable cure periods, if any, to perform any obligation under any other
agreement Borrower has with Administrative Agent or any Lender or any Affiliate
of Administrative Agent or any Lender; or

      


      (k)           Borrower,
Guarantor or a Permitted Affiliate defaults (taking into account applicable cure
periods, if any) in connection with any credit such Person has with any holder
of Indebtedness of such Person, if (1) the default consists of the failure to
make a payment in excess of $5,000,000 when due, or (2) one or more obligations
that are recourse to Borrower, Guarantor or a Permitted Affiliate whose
outstanding principal amount exceeds $20,000,000 in the aggregate have been
accelerated; or

      


      (l)       
    There is a material adverse change in Borrower’s or
Guarantor’s financial condition, or an event or condition that materially
impairs Borrower’s or a Permitted Affiliate’s intended use of one or more of the
Unencumbered Asset Pool Properties (subject to Borrower’s right to remove any
Unencumbered Asset Pool Property from the Unencumbered Asset Pool pursuant to
Section 4.1
(b)) which materially impairs Borrower’s or Guarantor’s ability to repay
the Loan; or

      


      (m)          Guarantor
shall no longer qualify as a real estate investment trust under the provisions
of Code Sections 856 and 857; or

      


      (n)           (i)
An ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan which
has resulted or could reasonably be expected to result in liability of Borrower
under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in
an aggregate amount in excess of $15,000,000, or (ii) Borrower or any ERISA
Affiliate fails to pay when due, after the expiration of any applicable grace
period, any installment payment with respect to its withdrawal liability under
Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount in
excess of $15,000,000; or

      


      (o)           Any
Loan Document, at any time after its execution and delivery and for any reason
other than as expressly permitted hereunder or satisfaction in full of all the
Obligations, ceases to be in full force and effect (unless such Loan Document is
replaced in a manner reasonably satisfactory to Administrative Agent); or any of
Borrower, Guarantor or a Permitted Affiliate or a subsidiary of any of them
contests in any manner the validity or enforceability of the remedies of
Administrative Agent, the L/C Issuer or any Lender under any Loan Document; or a
party to a Loan Document (other than any Lender or Administrative Agent) denies
that it has any further liability or obligation under any Loan Document, or
purports to revoke, terminate or rescind any Loan Document.

      


      Notwithstanding
the foregoing, any event or circumstance described in the foregoing clauses
(a)-(o) with respect to any Permitted Affiliate shall not constitute an Event of
Default hereunder as long as, no later than 30 days after Borrower’s Knowledge
of such event or circumstance, (i) all of the Unencumbered Asset Pool Property
owned by such Permitted Affiliate is removed from the Unencumbered Asset Pool by
Borrower pursuant to Section 4.1(b), (ii)
such Unencumbered Asset Pool Property is no longer included in the calculation
of Availability hereunder, (iii) after the removal of such Unencumbered Asset
Pool Property, the aggregate Outstanding Amount of Loans and Swing Loans plus
the Outstanding Amount of L/C Obligations will be less than or equal to the
Availability, the Unencumbered Development Property Value does not exceed 20% of
the Unencumbered Asset Pool Value, and no Event of Default
exists.


      
        
           


        

        
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      8.2           Remedies.  If any
Event of Default occurs, Administrative Agent shall, at the request of, or may,
with the consent of, the Required Lenders:

      


      8.2.1        Termination of Commitment to
Lend.  Declare
the Commitment of each Lender and the commitment of the Swing Line Lender to
make Loans or Swing Loans, as the case may be, and the commitment of the L/C
Issuer to issue Letters of Credit to be terminated, whereupon such commitments
shall forthwith be terminated; provided, however, that Administrative Agent and
the Lenders shall continue to honor any outstanding Letter of Credit;
and

      


      8.2.2        Acceleration of
Loans.  Declare
the unpaid principal amount of all outstanding Loans and Swing Loans, all
interest accrued and unpaid thereon, and all other amounts owing or payable
hereunder or under any other Loan Document to be immediately due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived by Borrower; and

      


      8.2.3        Security for Letters of
Credit.  Require
that Borrower deposit with Administrative Agent, for the benefit of the Lenders,
on demand and as cash security for Borrower’s obligations under the Loan
Documents, Cash Collateral in an amount equal to the aggregate undrawn amount of
all then outstanding Letters of Credit (and Borrower hereby grants to
Administrative Agent, as administrative agent for the Lenders, a security
interest in any such amount deposited with Administrative Agent (and any amount
deposited with Administrative Agent pursuant to Section 2.8.2(a)),
all earnings thereon and all proceeds thereof, and as to such amounts
Administrative Agent shall have the rights and remedies of a secured party under
the California Uniform Commercial Code); provided that upon
the occurrence of any event specified in Section 8.1(d) above
with respect to Borrower or Guarantor, such amounts shall automatically become
due and payable without further act of Administrative Agent or the Lenders;
and

      


      8.2.4        Exercise of Rights and
Remedies.  Exercise
all rights and remedies available to it under the Loan Documents or applicable
Law; provided,
however, that upon the occurrence of any event specified in Section 8.1(d) above,
the obligation of each Lender and the Swing Line Lender to make Loans or Swing
Loans, as the case may be, and the obligation of the L/C Issuer to issue Letters
of Credit shall automatically terminate, and the unpaid principal amount of all
outstanding Loans and Swing Loans and all interest and other amounts as
aforesaid shall automatically become due and payable without further act of
Administrative Agent or any Lender.

      


      8.3           Application of
Funds.  After
the exercise of remedies provided for in Section 8.2 (or after
the Loans and Swing Loans have automatically become immediately due and payable
and the undrawn amount of outstanding Letters of Credit have automatically been
required to be Cash Collateralized as set forth in the proviso to Section 8.2.3), any
amounts received on account of the Obligations shall be applied by
Administrative Agent in the following order:


      
        
           


        

        
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      First, to payment of
that portion of the Obligations constituting fees, indemnities, expenses and
other amounts (including legal fees and expenses and amounts payable under Sections 2.11, 6.2,
and 10.4)
payable to Administrative Agent in its capacity as such;

      


      Second, to payment of
that portion of the Obligations constituting fees, indemnities and other amounts
(other than principal and interest) payable to the Lenders (including amounts
payable under Sections
2.11, 3.1, 3.3, 3.4, 6.2, and 10.4), ratably among
them in proportion to the amounts described in this clause Second are payable to
them;

      


      Third, to payment of
that portion of the Obligations constituting accrued and unpaid interest on the
Loans, Swing Loans, L/C Borrowings and other Obligations, ratably among the
Lenders in proportion to the respective amounts described in this clause Third payable to
them;

      


      Fourth, to payment of
that portion of the Obligations constituting unpaid principal of the Loans,
Swing Loans and L/C Borrowings, ratably among the Lenders in proportion to the
respective amounts described in this clause Fourth held by
them;

      


      Fifth, to
Administrative Agent for the account of the L/C Issuer to Cash Collateralize the
aggregate undrawn amount of Letters of Credit; and

      


      Last, the balance, if
any, after all of the Obligations have been indefeasibly paid in full, to
Borrower or as otherwise required by law.

      


      Subject
to Section
2.5.5, amounts used to Cash Collateralize the aggregate undrawn amount of
Letters of Credit pursuant to clause Fifth above shall be
applied to satisfy drawings under such Letters of Credit as they
occur.  If any amount remains on deposit as Cash Collateral after all
Letters of Credit have either been fully drawn or expired, such remaining amount
shall be applied to the other Obligations, if any, in the order set forth
above.

      


      
        	
                9.

              	
                ADMINISTRATIVE
      AGENT.

              


      

      


      9.1           Appointment and
Authority.  Each of
the Lenders and the L/C Issuer hereby irrevocably appoints PNC Bank to act on
its behalf as Administrative Agent hereunder and under the other Loan Documents
and authorizes Administrative Agent to take such actions on its behalf and to
exercise such powers as are delegated to Administrative Agent by the terms
hereof or thereof, together with such actions and powers as are reasonably
incidental thereto.  The provisions of this Article 9 are solely
for the benefit of Administrative Agent, the Lenders and the L/C Issuer, and
Borrower shall not have rights as a third party beneficiary of any of such
provisions.

      


      9.2           Rights as a
Lender.  The
Person serving as Administrative Agent hereunder shall have the same rights and
powers in its capacity as a Lender as any other Lender and may exercise the same
as though it were not Administrative Agent and the term “Lender” or “Lenders”
shall, unless otherwise expressly indicated or unless the context otherwise
requires, include the Person serving as Administrative Agent hereunder in its
individual capacity.  Such Person and its Affiliates may accept
deposits from, lend money to, act as the financial advisor or in any other
advisory capacity for and generally engage in any kind of business with Borrower
or any subsidiary or other Affiliate thereof as if such Person were not
Administrative Agent hereunder and without any duty to account therefor to the
Lenders.


      
        
           


        

        
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      9.3           Exculpatory
Provisions.

      


      9.3.1        Limitation of Administrative
Agent’s Duties.  Administrative
Agent shall not have any duties or obligations except those expressly set forth
herein and in the other Loan Documents.  Without limiting the
generality of the foregoing, Administrative Agent: (a) shall not be subject to
any fiduciary or other implied duties, regardless of whether a Default or Event
of Default has occurred and is continuing; (b) shall not have any duty to take
any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated hereby or by the other
Loan Documents that Administrative Agent is required to exercise as directed in
writing by the Required Lenders (or such other number or percentage of the
Lenders as shall be expressly provided for herein or in the other Loan
Documents), provided that
Administrative Agent shall not be required to take any action that, in its
opinion or the opinion of its counsel, may expose Administrative Agent to
liability or that is contrary to any Loan Document or applicable law; and (c)
shall not, except as expressly set forth herein and in the other Loan Documents,
have any duty to disclose, and shall not be liable for the failure to disclose,
any information relating to Borrower or any of its Affiliates that is
communicated to or obtained by the Person serving as Administrative Agent or any
of its Affiliates in any capacity.

      


      9.3.2        Limitation of Administrative
Agent’s Liability.  Administrative
Agent shall not be liable to any Lender for any action taken or not taken by it
(i) with the consent or at the request of the Required Lenders (or such other
number or percentage of the Lenders as shall be necessary, or as Administrative
Agent shall believe in good faith shall be necessary, under the circumstances as
provided in Sections
8.2 and 9.1), or (ii) in the
absence of its own gross negligence or willful
misconduct.  Administrative Agent shall be deemed not to have
knowledge of any Default or Event of Default unless and until notice describing
such Default or Event of Default is given to Administrative Agent by Borrower, a
Lender or the L/C Issuer.

      


      9.3.3        Limitation of Administrative
Agent’s Responsibilities.  Administrative
Agent shall not be responsible to any Lender or L/C Issuer for, or have any duty
to ascertain or inquire for the benefit of any Lender or L/C Issuer into, (i)
any statement, warranty or representation made in or in connection with this
Agreement or any other Loan Document, (ii) the contents of any certificate,
report or other document delivered hereunder or thereunder or in connection
herewith or therewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth herein or therein
or the occurrence of any Default, (iv) the validity, enforceability,
effectiveness or genuineness of this Agreement, any other Loan Document or any
other agreement, instrument or document, or (v) the satisfaction of any
condition set forth in Article 5 or
elsewhere herein, other than to confirm receipt of items expressly required to
be delivered to Administrative Agent.


      
        
           


        

        
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      9.4           Reliance by Administrative
Agent.  Administrative
Agent shall be entitled to rely upon, and shall not incur any liability to any
Lender or L/C Issuer for relying upon, any notice, request, certificate,
consent, statement, instrument, document or other writing (including any
electronic message, Internet or intranet website posting or other distribution)
believed by it to be genuine and to have been signed, sent or otherwise
authenticated by the proper Person; provided, however, that notwithstanding any
such notice, request or other direction to the contrary, in all events
Administrative Agent shall direct that the proceeds of a Borrowing be deposited
in the account of the Borrower designated to Administrative Agent on the Closing
Date (the “Designated
Borrower’s Account”).  Subject to the foregoing sentence,
Administrative Agent also may rely upon any statement made to it orally or by
telephone and believed by it to have been made by the proper Person, and shall
not incur any liability for relying thereon.  In determining
compliance with any condition hereunder to the making of a Loan, or the issuance
of a Letter of Credit, that by its terms must be fulfilled to the satisfaction
of a Lender or the L/C Issuer, Administrative Agent may presume that such
condition is satisfactory to such Lender or the L/C Issuer unless Administrative
Agent shall have received notice to the contrary from such Lender or the L/C
Issuer prior to the making of such Loan or the issuance of such Letter of
Credit.  Administrative Agent may consult with legal counsel (who may
be counsel for Borrower), independent accountants and other experts selected by
it, and shall not be liable for any action taken or not taken by it in
accordance with the advice of any such counsel, accountants or
experts.

      


      9.5           Delegation of
Duties.  Administrative
Agent may perform any and all of its duties and exercise its rights and powers
hereunder or under any other Loan Document by or through any one or more
sub-agents appointed by Administrative Agent.  Administrative Agent
and any such sub-agent may perform any and all of its duties and exercise its
rights and powers by or through their respective Related Parties.  The
exculpatory provisions of this Article shall apply to any such sub-agent and to
the Related Parties of Administrative Agent and any such sub-agent, and shall
apply to their respective activities in connection with the syndication of the
credit facilities provided for herein as well as activities as Administrative
Agent.

      


      9.6           Resignation of
Administrative Agent.

      


      9.6.1        Notice of
Resignation.  Administrative
Agent may at any time give notice of its resignation to the Lenders, the L/C
Issuer and Borrower.  Upon receipt of any such notice of resignation,
the Required Lenders shall have the right, in consultation with Borrower, to
appoint a successor, which shall be a bank with an office in the United States,
or an Affiliate of any such bank with an office in the United States; provided that as long
as no Event of Default hereunder has occurred and is continuing, Borrower shall
have the right to consent to such successor, such consent to not be unreasonably
withheld.  If no such successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 30 days after
the retiring Administrative Agent gives notice of its resignation, then the
retiring Administrative Agent may on behalf of the Lenders and the L/C Issuer,
appoint a successor Administrative Agent meeting the qualifications set forth
above, provided
that as long as no Event of Default hereunder has occurred and is continuing,
Borrower shall have the right to consent to such successor, such consent to not
be unreasonably withheld; provided further that
if Administrative Agent shall notify Borrower and the Lenders that no qualifying
Person has accepted such appointment, then such resignation shall nonetheless
become effective in accordance with such notice and (1) the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder and under the other Loan Documents and (2) all payments,
communications and determinations provided to be made by, to or through
Administrative Agent shall instead be made by or to each Lender and the L/C
Issuer directly, until such time as the Required Lenders appoint a successor
Administrative Agent as provided for above in this Section.  Upon the
acceptance of a successor’s appointment as Administrative Agent hereunder, such
successor shall succeed to and become vested with all of the rights, powers,
privileges and duties of the retiring (or retired) Administrative Agent, and the
retiring Administrative Agent shall be discharged from all of its duties and
obligations hereunder or under the other Loan Documents (if not already
discharged therefrom as provided above in this Section).  The fees
payable by Borrower to a successor Administrative Agent shall be the same as
those payable to its predecessor unless otherwise agreed in writing between
Borrower and such successor.  After the retiring Administrative
Agent’s resignation hereunder and under the other Loan Documents, the provisions
of this Article and Section 10.4 shall
continue in effect for the benefit of such retiring Administrative Agent, its
sub-agents and their respective Related Parties in respect of any actions taken
or omitted to be taken by any of them while the retiring Administrative Agent
was acting as Administrative Agent.


      
        
           


        

        
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      9.6.2        Resignation by PNC
Bank.  Any
resignation by PNC Bank as Administrative Agent pursuant to this Section shall
also constitute its resignation as L/C Issuer and Swing Line
Lender.  Upon the acceptance of a successor’s appointment as
Administrative Agent hereunder, (a) such successor shall succeed to and become
vested with all of the rights, powers, privileges and duties of the retiring L/C
Issuer and Swing Line Lender, (b) the retiring L/C Issuer and Swing Line Lender
shall be discharged from all of their respective duties and obligations
hereunder or under the other Loan Documents, and (c) the successor L/C Issuer
shall issue letters of credit in substitution for the Letters of Credit, if any,
outstanding at the time of such succession or make other arrangements
satisfactory to the retiring L/C Issuer to effectively assume the obligations of
the retiring L/C Issuer with respect to such Letters of Credit.

      


      9.7           Non-Reliance on
Administrative Agent and Other Lenders.  Each
Lender and the L/C Issuer acknowledges that it has, independently and without
reliance upon Administrative Agent or any other Lender or any of their Related
Parties and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement.  Each Lender and the L/C Issuer also acknowledges that it
will, independently and without reliance upon Administrative Agent or any other
Lender or any of their Related Parties and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any other Loan Document or any related agreement or any document furnished
hereunder or thereunder.

      


      9.8           No Other Duties,
Etc.  Anything herein to the contrary notwithstanding, none of
the Sole Lead Arranger or the Sole Book Manager listed on the cover page hereof
shall have any powers, duties or responsibilities under this Agreement or any of
the other Loan Documents, except in its capacity, as applicable, as
Administrative Agent, a Lender or the L/C Issuer hereunder.


      
        
           


        

        
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      9.9           Administrative Agent May
File Proofs of Claim.  In case
of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to Borrower, Guarantor or any Permitted Affiliate,
Administrative Agent (irrespective of whether the principal of any Loan or L/C
Obligation shall then be due and payable as herein expressed or by declaration
or otherwise and irrespective of whether Administrative Agent shall have made
any demand on Borrower) shall be entitled and empowered, by intervention in such
proceeding or otherwise (a) to file and prove a claim for the whole amount of
the principal and interest owing and unpaid in respect of the Loans, Swing
Loans, L/C Obligations and all other Obligations that are owing and unpaid and
to file such other documents as may be necessary or advisable in order to have
the claims of the Lenders, the L/C Issuer and Administrative Agent (including
any claim for the reasonable compensation, expenses, disbursements and advances
of the Lenders, the L/C Issuer and Administrative Agent and their respective
agents and counsel and all other amounts due the Lenders, the L/C Issuer and
Administrative Agent under Sections 2.11, 6.2
and 10.4)
allowed in such judicial proceeding; and (b) to collect and receive any monies
or other property payable or deliverable on any such claims and to distribute
the same; and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding is hereby
authorized by each Lender and the L/C Issuer to make such payments to
Administrative Agent and, in the event that Administrative Agent shall consent
to the making of such payments directly to the Lenders and the L/C Issuer, to
pay to Administrative Agent any amount due for the reasonable compensation,
expenses, disbursements and advances of Administrative Agent and its agents and
counsel, and any other amounts due Administrative Agent under Sections 2.11,
6.2 and 10.4.  Nothing
contained herein shall be deemed to authorize Administrative Agent to authorize
or consent to or accept or adopt on behalf of any Lender or the L/C Issuer any
plan of reorganization, arrangement, adjustment or composition affecting the
Obligations or the rights of any Lender or to authorize Administrative Agent to
vote in respect of the claim of any Lender in any such proceeding.

      


      9.10         Release of Permitted
Affiliate from Payment Guaranty.  The
Lenders irrevocably authorize Administrative Agent, at its option and in its
discretion and without the consent of any Lender, to release any Permitted
Affiliate from its obligations under its Payment Guaranty if such Person ceases
to be an owner of an Unencumbered Asset Pool Property as a result of a
transaction permitted hereunder.  Upon request by Administrative Agent
at any time, the Required Lenders will confirm in writing Administrative Agent’s
authority to release any Permitted Affiliate from its obligations under its
Payment Guaranty pursuant to this Section
9.10.

      


      
        	
                10.

              	
                MISCELLANEOUS
      PROVISIONS.

              


      

      


      10.1         Amendments and
Waivers.  No
amendment or waiver of any provision of this Agreement or any other Loan
Document, and no consent with respect to any departure by Borrower, Guarantor or
any Permitted Affiliate therefrom, shall be effective unless the same shall be
in writing and signed by the Required Lenders (or by Administrative Agent at the
written request of the Required Lenders) and, in the case of an amendment, by
Borrower or Guarantor or, if required, a Permitted Affiliate, and acknowledged
by Administrative Agent, and then any such waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given;
provided,
however, that no such waiver, amendment or consent shall:


      
        
           


        

        
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      (a)           waive
any condition set forth in Section 5.1 without
the written consent of each Lender;

      


      (b)           increase
the aggregate Commitment or increase the Commitment of any Lender without the
written consent of such Lender;

      


      (c)           postpone
or delay any date fixed by this Agreement or any other Loan Document for any
payment of principal, interest, fees or other amounts due to the Lenders, or any
of them, hereunder or under any other Loan Document without the written consent
of each Lender directly affected thereby;

      


      (d)           reduce
the rate of interest or any fees or other amounts payable in connection with the
Loans, Swing Loans or L/C Borrowings except as expressly provided in this
Agreement without the written consent of each Lender directly affected thereby;
provided, however, that only
the consent of the Required Lenders shall be necessary (i) to amend the
definition of “Default Rate” or to waive any obligation of Borrower to pay
interest or Letter of Credit Fees at the Default Rate, or (ii) to amend any
financial covenant hereunder (or any defined term used therein);

      


      (e)           change
Section 2.16 or
Section 8.3 in
a manner that would alter the pro rata sharing of payments required thereby
without the written consent of each Lender;

      


      (f)           change
the voting percentage of the Commitments or of the aggregate unpaid principal
amount of the Loans that is required for the Lenders, or any of them, to take
any action hereunder (e.g., the provisions of this Section 10.1 or the
definition of the term “Required Lenders”), without the written consent of each
Lender;

      


      (g)           amend
this or any provision requiring consent of all Lenders for action by the Lenders
or Administrative Agent, without the written consent of each Lender;
or

      


      (h)           discharge
Borrower, Guarantor or any Permitted Affiliate, or release all or substantially
all of the collateral securing the Obligations, if any, without the written
consent of each Lender, except as otherwise may be provided in the Loan
Documents (including Section 9.10
hereof, which permits the release of a Permitted Affiliate without the consent
of the Lenders under the terms and conditions set forth therein), or except
where only the consent of the Required Lenders is expressly required by any Loan
Document;

      


      and,
provided further, that (i) no
amendment, waiver or consent shall, unless in writing and signed by the L/C
Issuer in addition to the Lenders required above, affect the rights or duties of
the L/C Issuer under this Agreement or any Issuer Document relating to any
Letter of Credit issued or to be issued by it; (ii) no amendment, waiver or
consent shall, unless in writing and signed by the Swing Line Lender in addition
to the Lenders required above, affect the rights or duties of the Swing Line
Lender under this Agreement; (iii) no amendment, waiver or consent shall, unless
in writing and signed by Administrative Agent in addition to the Lenders
required above, affect the rights or duties of Administrative Agent under this
Agreement or any other Loan Document; and (iv) the Engagement Letter may be
amended, or rights or privileges thereunder waived, in a writing executed only
by the parties thereto.  Notwithstanding anything to the contrary
herein, no Defaulting Lender shall have any right to approve or disapprove any
amendment, waiver or consent hereunder, except that the Commitment of such
Lender may not be increased or extended without the consent of such
Lender.


      
        
           


        

        
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      10.2           Notices; Effectiveness;
Electronic Communication.

      


      (a)           Notices
Generally.  Except
in the case of notices and other communications expressly permitted to be given
by telephone (and except as provided in Section 10.2(b)
below), all notices and other communications provided for herein shall be in
writing and shall be delivered by hand or overnight courier service, mailed by
certified or registered mail or sent by facsimile as follows, and all notices
and other communications expressly permitted hereunder to be given by telephone
shall be made to the applicable telephone number, as follows:

      


      (i)          
 if to Borrower, Administrative Agent, the L/C Issuer or the Swing Line
Lender, to the address, facsimile number, electronic mail address or telephone
number specified for such Person on Schedule 1.2;
and

      


      (ii)           if
to any other Lender, to the address, facsimile number, electronic mail address
or telephone number specified in its Administrative Questionnaire.

      


      Notices
sent by hand or overnight courier service, or mailed by certified or registered
mail, shall be deemed to have been given when received; notices sent by
facsimile shall be deemed to have been given when sent (except that if not given
during normal business hours for the recipient, shall be deemed to have been
given at the opening of business on the next business day for the
recipient).  Notices delivered through electronic communications to
the extent provided in Section 10.2(b)
below, shall be effective as provided in such Section
10.2(b).

      


      (b)           Electronic
Communications.  (i)
Notices and other communications to the Lenders and the L/C Issuer hereunder may
be delivered or furnished by electronic communication (including e-mail and
Internet or intranet websites) pursuant to procedures approved by Administrative
Agent, provided
that the foregoing shall not apply to notices to any Lender or the L/C Issuer
pursuant to Article
2 if such Lender or the L/C Issuer, as applicable, has notified
Administrative Agent that it is incapable of receiving notices under such
Article by electronic communication.  Administrative Agent or Borrower
may, in its discretion, agree to accept notices and other communications to it
hereunder by electronic communications pursuant to procedures approved by it,
provided that
approval of such procedures may be limited to particular notices or
communications, and (ii) unless Administrative Agent otherwise prescribes, (y)
notices and other communications sent to an e-mail address shall be deemed
received upon the sender’s receipt of an acknowledgement from the intended
recipient (such as by the “return receipt requested” function, as available,
return e-mail or other written acknowledgement), provided that if such
notice or other communication is not sent during the normal business hours of
the recipient, such notice or communication shall be deemed to have been sent at
the opening of business on the next business day for the recipient, and (z)
notices or communications posted to an Internet or intranet website shall be
deemed received upon the deemed receipt by the intended recipient at its e-mail
address as described in the foregoing clause (y) of notification that such
notice or communication is available and identifying the website address
therefor.


      
        
           


        

        
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      (c)           The Platform.  THE
PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT PARTIES (AS DEFINED
BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR
THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR
OMISSIONS FROM THE BORROWER MATERIALS.  NO WARRANTY OF ANY KIND,
EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR
FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN
CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM.  In no event
shall Administrative Agent or any of its Related Parties (collectively, the
“Agent
Parties”) have any liability to Borrower, Guarantor, any Lender, the L/C
Issuer or any other Person for losses, claims, damages, liabilities or expenses
of any kind (whether in tort, contract or otherwise) arising out of Borrower’s,
Guarantor’s or Administrative Agent’s transmission of Borrower Materials through
the Internet, except to the extent that such losses, claims, damages,
liabilities or expenses are determined by a court of competent jurisdiction by a
final and nonappealable judgment to have resulted from the gross negligence or
willful misconduct of such Agent Party; provided, however, that in no
event shall any Agent Party have any liability to Borrower, Guarantor, any
Lender, the L/C Issuer or any other Person for indirect, special, incidental,
consequential or punitive damages (as opposed to direct or actual
damages).

      


      (d)           Change of Address,
Etc. Each of Borrower, Administrative Agent, the L/C Issuer and the Swing
Line Lender may change its address, facsimile or telephone number for notices
and other communications hereunder by notice to the other parties
hereto.  Each other Lender may change its address, facsimile or
telephone number for notices and other communications hereunder by notice to
Borrower, Administrative Agent, the L/C Issuer and the Swing Line
Lender.  In addition, each Lender agrees to notify Administrative
Agent from time to time to ensure that Administrative Agent has on record (i) an
effective address, contact name, telephone number, facsimile number and
electronic mail address to which notices and other communications may be sent
and (ii) accurate wire instructions for such Lender.

      


      (e)           Reliance by Administrative
Agent, L/C Issuer and Lenders.  Administrative
Agent, the L/C Issuer and the Lenders shall be entitled to rely and act upon any
notices (including telephonic Notices of Borrowing) purportedly given by or on
behalf of Borrower by a Person identifying himself or herself as a Responsible
Officer, even if (i) such notices were not made in a manner specified herein,
were incomplete or were not preceded or followed by any other form of notice
specified herein, or (ii) the terms thereof, as understood by the recipient,
varied from any confirmation thereof.  Borrower shall indemnify
Administrative Agent, the L/C Issuer, each Lender and the Related Parties of
each of them from all losses, costs, expenses and liabilities resulting from the
reliance by such Person on each notice purportedly given by or on behalf of
Borrower by a Person identifying himself or herself as a Responsible
Officer.  All telephonic notices to and other telephonic
communications with Administrative Agent may be recorded by Administrative
Agent, and each of the parties hereto hereby consents to such
recording.

      


      (f)           Communication with Lenders;
Availability of Documents.  All communications from
Administrative Agent to the Lenders requesting the Lenders’ determination,
consent, approval or disapproval (a) shall be given in the form of a written
notice to each Lender, (b) shall be accompanied by a description of the matter
or time as to which such determination, approval, consent or disapproval is
requested, or shall advise each Lender where such matter or item may be
inspected, or shall otherwise describe the matter or issue to be resolved, and
(c) shall include Administrative Agent’s recommended course of action or
determination in respect thereof.  Each Lender shall reply promptly,
but in any event within ten (10) Business Days after receipt of the request from
Administrative Agent (the “Lender Reply
Period”).  Unless a Lender shall give written notice to
Administrative Agent that it objects to the recommendation or determination of
Administrative Agent (together with a written explanation of the reasons behind
such objection) within the Lender Reply Period, such Lender shall be deemed to
have approved of or consented to such recommendation or
determination.  With respect to decisions requiring the approval of
the Required Lenders or all the Lenders, Administrative Agent shall submit its
recommendation or determination for approval of or consent to such
recommendation or determination to all Lenders and upon receiving the required
approval or consent shall follow the course of action or determination of the
Required Lenders (and each nonresponding Lender shall be deemed to have
concurred with such recommended course of action) or all the Lenders, as the
case may be.  Administrative Agent will make available to the Lenders
copies of the Loan Documents and any notices of default given to Borrower and,
to the extent made available to Administrative Agent pursuant to the terms of
this Agreement, copies of the organizational documents and financial information
of Borrower, Guarantor and the Permitted Affiliates.


      
        
           


        

        
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      10.3         No Waiver; Cumulative
Remedies.  No
failure by any Lender, the L/C Issuer or Administrative Agent to exercise, and
no delay by any such Person in exercising, any right, remedy, power or privilege
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege.  The rights, remedies, powers and privileges herein
provided are cumulative and not exclusive of any rights, remedies, powers and
privileges provided by law.

      


      10.4         Costs and Expenses;
Indemnity; Waiver of Consequential Damages, Etc.

      


      (a)           Costs and
Expenses.  Borrower
shall pay (i) all reasonable out-of-pocket expenses incurred by Administrative
Agent and its Affiliates (including the reasonable fees, charges and
disbursements of counsel for Administrative Agent), in connection with the
syndication of the credit facilities provided for herein, the preparation,
negotiation, execution and delivery of this Agreement and the other Loan
Documents or any amendments, modifications or waivers of the provisions hereof
or thereof (whether or not the transactions contemplated hereby or thereby shall
be consummated), and (ii) all reasonable out-of-pocket expenses incurred by
Administrative Agent, any Lender or the L/C Issuer (including the fees, charges
and disbursements of any counsel for Administrative Agent, any Lender or the L/C
Issuer), and shall pay all fees and time charges for attorneys who may be
employees of Administrative Agent, any Lender or the L/C Issuer, in connection
with the enforcement or protection of its rights (A) in connection with this
Agreement and the other Loan Documents, including its rights under this Section,
or (B) in connection with the Loans made or Letters of Credit issued hereunder,
including all such out-of-pocket expenses incurred during any workout,
restructuring or negotiations in respect of such Loans or Letters of
Credit.


      
        
           


        

        
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      (b)           Indemnification by the
Borrower.  Borrower
shall indemnify Administrative Agent (and any sub-agent thereof), each Lender
and the L/C Issuer, and each Related Party of any of the foregoing Persons (each
such Person being called an “Indemnitee”) against,
and hold each Indemnitee harmless from, any and all losses, claims, damages,
liabilities and related expenses (including the fees, charges and disbursements
of any counsel for any Indemnitee), and shall indemnify and hold harmless each
Indemnitee from all fees and time charges and disbursements for attorneys who
may be employees of any Indemnitee, incurred by any Indemnitee or asserted
against any Indemnitee by any third party or by Borrower, Guarantor or any
Permitted Affiliate arising out of, in connection with, or as a result of (i)
the execution or delivery of this Agreement, any other Loan Document or any
agreement or instrument contemplated hereby or thereby, the performance by the
parties hereto of their respective obligations hereunder or thereunder, the
consummation of the transactions contemplated hereby or thereby, or, in the case
of Administrative Agent (and any sub-agent thereof) and its Related Parties
only, the administration of this Agreement and the other Loan Documents, (ii)
any Loan or Letter of Credit or the use or proposed use of the proceeds
therefrom (including any refusal by the L/C Issuer to honor a demand for payment
under a Letter of Credit if the documents presented in connection with such
demand do not strictly comply with the terms of such Letter of Credit), (iii)
any actual or alleged presence or release of Hazardous Substances on or from any
property owned or operated by Borrower or any of its subsidiaries, or any
liability under any Environmental Laws related in any way to Borrower or any of
its subsidiaries, or (iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory, whether brought by a third party or by
Borrower, Guarantor or any Permitted Affiliate, and regardless of whether any
Indemnitee is a party thereto; provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses (x) are determined by a
court of competent jurisdiction by final and nonappealable judgment to have
resulted from the gross negligence or willful misconduct of such Indemnitee or
(y) result from a claim brought by Borrower, Guarantor or any Permitted
Affiliate against an Indemnitee for breach in bad faith of such Indemnitee’s
obligations hereunder or under any other Loan Document, if Borrower, Guarantor
or such Permitted Affiliate has obtained a final and nonappealable judgment in
its favor on such claim as determined by a court of competent
jurisdiction.

      


      (c)           Reimbursement by
Lenders.  To the
extent that Borrower for any reason fails to indefeasibly pay any amount
required under Sections 10.4(a) or
(b) to be paid
by it to Administrative Agent (or any sub-agent thereof), the L/C Issuer or any
Related Party of any of the foregoing, each Lender severally agrees to pay to
Administrative Agent (or any such sub-agent), the L/C Issuer or such Related
Party, as the case may be, such Lender’s Pro Rata Share (determined as of the
time that the applicable unreimbursed expense or indemnity payment is sought) of
such unpaid amount, provided that the
unreimbursed expense or indemnified loss, claim, damage, liability or related
expense, as the case may be, was incurred by or asserted against Administrative
Agent (or any such sub-agent) or the L/C Issuer in its capacity as such, or
against any Related Party of any of the foregoing acting for Administrative
Agent (or any such sub-agent) or L/C Issuer in connection with such
capacity.  The obligations of the Lenders under this Section 10.4(c) are
subject to the provisions of Section
2.14.2.

      


      (d)           Payments.  All
amounts due under this Section shall be payable not later than fifteen days
after demand therefor.


      
        
           


        

        
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      (e)           Survival.  The
agreements in this Section shall survive the resignation of Administrative Agent
and the L/C Issuer, the replacement of any Lender, the termination of the
Commitments and the repayment, satisfaction or discharge of all the other
Obligations.

      


      10.5         Successors and
Assigns.

      


      (a)           Successors and Assigns
Generally.  The
provisions of this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns permitted hereby,
except that Borrower may not assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of Administrative Agent
and each Lender and no Lender may assign or otherwise transfer any of its rights
or obligations hereunder except (i) to an Eligible Assignee in accordance with
the provisions of Section 10.5(b),
(ii) by way of participation in accordance with the provisions of Section 10.5(d), or
(iii) by way of pledge or assignment of a security interest subject to the
restrictions of Section 10.5(f).  Nothing
in this Agreement, expressed or implied, shall be construed to confer upon any
Person (other than the parties hereto, their respective successors and assigns
permitted hereby, Participants to the extent provided in Section 10.5(d) and,
to the extent expressly contemplated hereby, the Related Parties of each of
Administrative Agent, the L/C Issuer and the Lenders) any legal or equitable
right, remedy or claim under or by reason of this Agreement.

      


      (b)           Assignment by
Lenders.  Any
Lender may at any time assign to one or more Eligible Assignees all or a portion
of its rights and obligations under this Agreement (including all or a portion
of its Commitment and the Loans (including for purposes of this clause (a),
participations in L/C Obligations and in Swing Loans) at the time owing to it;
provided that
(i) except in the case of an assignment of the entire remaining amount of the
assigning Lender’s Commitment and the Loans at the time owing to it or in the
case of an assignment to a Lender or an Affiliate of a Lender or an Approved
Fund with respect to a Lender, the aggregate amount of the Commitment (which for
this purpose includes Loans outstanding thereunder) subject to each such
assignment, determined as of the date the Assignment and Assumption with respect
to such assignment is delivered to Administrative Agent or, if “Trade Date” is
specified in the Assignment and Assumption, as of the Trade Date, shall not be
less than $5,000,000 unless each of Administrative Agent and, so long as no
Event of Default has occurred and is continuing, Borrower otherwise consents
(each such consent not to be unreasonably withheld or delayed), provided that concurrent
assignments to members of an Assignee Group and concurrent assignments from
members of an Assignee Group to a single Eligible Assignee (or to an Eligible
Assignee and members of its Assignee Group) will be treated as a single
assignment for purposes of determining whether such minimum amount has been met;
(ii) each partial assignment shall be made as an assignment of a proportionate
part of all the assigning Lender’s rights and obligations under this Agreement
with respect to the Loans or the Commitment assigned, except that this clause
(ii) shall not apply to rights in respect of Swing Loans; (iii) any assignment
of a Commitment must be approved by Administrative Agent, the L/C Issuer and the
Swing Line Lender (which consent will not be unreasonably withheld or delayed)
unless the Person that is the proposed assignee is itself a Lender (whether or
not the proposed assignee would otherwise qualify as an Eligible Assignee); and
(iv) the parties to each assignment shall execute and deliver to Administrative
Agent an Assignment and Assumption, together with a processing and recordation
fee in the amount, if any, required as set forth in Schedule 1.4, and the
Eligible Assignee, if it shall not be a Lender, shall deliver to Administrative
Agent an Administrative Questionnaire.  Subject to acceptance and
recording thereof by Administrative Agent pursuant to clause (b) of this
Section, from and after the effective date specified in each Assignment and
Assumption, the Eligible Assignee thereunder shall be a party to this Agreement
and, to the extent of the interest assigned by such Assignment and Assumption,
have the rights and obligations of a Lender under this Agreement, and the
assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Assumption, be released from its obligations under this
Agreement (and, in the case of an Assignment and Assumption covering all of the
assigning Lender’s rights and obligations under this Agreement, such Lender
shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections
3.1, 3.3, 3.4, and 10.4 with respect to
facts and circumstances occurring prior to the effective date of such
assignment).  Upon request, Borrower (at its expense) shall execute
and deliver a Revolving Note and Note to the assignee Lender and, in such event,
the assigning Lender shall return the original Revolving Note and Note for
cancellation and, if the assignment is for a portion of the assigning Lender’s
Commitment, replacement by a new Revolving Note issued by Borrower and
evidencing the assigning Lender’s reduced Commitment.  Any assignment
or transfer by a Lender of rights or obligations under this Agreement that does
not comply with this Section shall be treated for purposes of this Agreement as
a sale by such Lender of a participation in such rights and obligations in
accordance with clause (d) of this Section.  Notwithstanding the
foregoing, assignment of the obligations of the L/C Issuer after the resignation
of PNC Bank as L/C Issuer, or any other successor thereafter acting as L/C
Issuer, shall be governed by Section 10.5(h)
hereof.


      
        
           


        

        
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      (c)           Register.  Administrative
Agent, acting solely for this purpose as an agent of Borrower, shall maintain at
Administrative Agent’s Office a copy of each Assignment and Assumption delivered
to it and a register for the recordation of the names and addresses of the
Lenders, and the Commitments of, and principal amounts of the Loans and L/C
Obligations owing to, each Lender pursuant to the terms hereof from time to time
(the “Register”).  The
entries in the Register shall be conclusive, and Borrower, Administrative Agent
and the Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary.  The Register shall
be available for inspection by each of Borrower and the L/C Issuer at any
reasonable time and from time to time upon reasonable prior
notice.  In addition, at any time that a request for a consent for a
material or substantive change to the Loan Documents is pending, any Lender may
request and receive from Administrative Agent a copy of the
Register.

      


      (d)           Participations.  Any
Lender may at any time, without the consent of, or notice to, Borrower or
Administrative Agent, sell participations to any Person (other than a natural
person or Borrower or any of Borrower’s Affiliates or subsidiaries) (each, a
“Participant”)
in all or a portion of such Lender’s rights and/or obligations under this
Agreement (including all or a portion of its Commitment and/or the Loans
(including such Lender’s participations in L/C Obligations and/or Swing Loans)
owing to it); provided that (i)
such Lender’s obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (iii) Borrower, Guarantor, each Permitted
Affiliate, Administrative Agent and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender’s rights and
obligations under this Agreement.  Any agreement or instrument
pursuant to which a Lender sells such a participation shall provide that such
Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, waiver or other modification
described in clauses (a)-(g) of Section 10.1 that
directly affects such Participant.  Subject to clause (e) of this
Section, Borrower agrees that each Participant shall be entitled to the benefits
of Sections
3.1, 3.3, 3.4, and 10.4 to the same
extent as if it were a Lender and had acquired its interest by assignment
pursuant to clause (b) of this Section.


      
        
           


        

        
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      (e)           Limitations on Participant
Rights.  A
Participant shall not be entitled to receive any greater payment under Section 3.1 or 3.3 than the
applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant.  A Participant that would be a
Foreign Lender if it were a Lender shall not be entitled to the benefits of
Section 3.1
unless Borrower is notified of the participation sold to such Participant and
such Participant agrees, for the benefit of Borrower, to comply with Sections 3.1.5 and
3.3.3 as though
it were a Lender.

      


      (f)           Certain Pledges.  Any
Lender may at any time pledge or assign a security interest in all or any
portion of its rights under this Agreement (including under its Note, if any) to
secure obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank; provided that no such pledge
or assignment shall release such Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party
hereto.

      


      (g)           Electronic Execution of
Assignments.  The
words “execution,” “signed,” “signature,” and words of like import in any
Assignment and Assumption shall be deemed to include electronic signatures or
the keeping of records in electronic form, each of which shall be of the same
legal effect, validity or enforceability as a manually executed signature or the
use of a paper-based recordkeeping system, as the case may be, to the extent and
as provided for in any applicable law, including the Federal Electronic
Signatures in Global and National Commerce Act, the New York State Electronic
Signatures and Records Act, or any other similar state laws based on the Uniform
Electronic Transactions Act.

      


      (h)           Resignation as L/C Issuer or
Swing Line Lender after Assignment.  Notwithstanding
anything to the contrary contained herein, if at any time PNC Bank assigns all
of its Commitment and Loans pursuant to clause (a) above, PNC Bank may, (i) upon
30 days’ notice to Borrower and the Lenders, resign as L/C Issuer and/or (ii)
upon 30 days’ notice to Borrower, resign as Swing Line Lender.  In the
event of any such resignation as L/C Issuer or Swing Line Lender, Borrower shall
be entitled to appoint from among the Lenders a successor L/C Issuer or Swing
Line Lender hereunder and, if such designated appointee agrees to act as
successor L/C Issuer or Swing Line Lender hereunder, Lenders hereby agree to
accept such appointment; provided, however, that no
failure by Borrower to appoint any such successor shall affect the resignation
of PNC Bank as L/C Issuer or Swing Line Lender, as the case may
be.  In addition, if PNC Bank fails to issue a Letter of Credit under
Section
2.1.2(b) hereof because the issuance of such Letter of Credit would
violate any of its policies.  PNC Bank will, upon the request of
Borrower, resign as L/C Issuer hereunder and Borrower shall be entitled to
appoint from among the Lenders a successor L/C Issuer hereunder and, if such
designated appointee agrees to act as successor L/C Issuer hereunder, Lenders
hereby agree to accept such appointment; provided, however, that no
failure by Borrower to appoint any such successor shall affect the resignation
of PNC Bank as L/C Issuer.  If PNC Bank resigns as L/C Issuer, it
shall retain all the rights and obligations of the L/C Issuer hereunder with
respect to all Letters of Credit outstanding as of the effective date of its
resignation as L/C Issuer and all L/C Obligations with respect thereto
(including the right to require the Lenders to make Reference Rate Loans or fund
risk participations in Unreimbursed Amounts pursuant to Section
2.5.1).  If PNC Bank resigns as Swing Line Lender, it shall
retain all the rights of the Swing Line Lender provided for hereunder with
respect to Swing Loans made by it and outstanding as of the effective date of
such resignation, including the right to require the Lenders to make Reference
Rate Loans or fund risk participations in outstanding Swing Loans pursuant to
Section
2.2.5.  Upon the appointment of a successor L/C Issuer and/or
Swing Line Lender, (a) such successor shall succeed to and become vested with
all of the rights, powers, privileges and duties of the retiring L/C Issuer or
Swing Line Lender, as the case may be, and (b) the successor L/C Issuer shall
issue letters of credit in substitution for the Letters of Credit, if any,
outstanding at the time of such succession or make other arrangements
satisfactory to PNC Bank to effectively assume the obligations of PNC Bank with
respect to such Letters of Credit.


      
        
           


        

        
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      10.6           Confidentiality.  Each of
Administrative Agent, the Lenders and the L/C Issuer agrees to maintain the
confidentiality of the Information (as defined below), except that Information
may be disclosed (a) to its Affiliates and to its and its Affiliates’ respective
partners, directors, officers, employees, agents, advisors and representatives
(it being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Information and instructed to keep
such Information confidential), (b) to the extent requested by any regulatory
authority purporting to have jurisdiction over it (including any self-regulatory
authority, such as the National Association of Insurance Commissioners), (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party hereto, (e) in connection with the
exercise of any remedies hereunder or under any other Loan Document or any
action or proceeding relating to this Agreement or any other Loan Document or
the enforcement of rights hereunder or thereunder, (f) subject to an agreement
containing provisions substantially the same as those of this Section, to (i)
any assignee of or Participant in, or any prospective assignee of or Participant
in, any of its rights or obligations under this Agreement or (ii) any actual or
prospective counterparty (or its advisors) to any swap or derivative transaction
relating to Borrower and its obligations, (g) with the consent of Borrower or
(h) to the extent such Information (x) becomes publicly available other than as
a result of a breach of this Section or (y) becomes available to Administrative
Agent, any Lender, the L/C Issuer or any of their respective Affiliates on a
nonconfidential basis from a source other than Borrower.

      


      For
purposes of this Section, “Information” means
all information received from Borrower or any subsidiary thereof relating to
Borrower or any subsidiary thereof or any of their respective businesses, other
than any such information that is available to Administrative Agent, any Lender
or the L/C Issuer on a nonconfidential basis prior to disclosure by Borrower or
any subsidiary thereof, provided that, in the
case of information received from Borrower or any subsidiary thereof after the
date hereof, such information is clearly identified at the time of delivery as
confidential.  Any Person required to maintain the confidentiality of
Information as provided in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of
care to maintain the confidentiality of such Information as such Person would
accord to its own confidential information.


      
        
           


        

        
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      Each of
Administrative Agent, the Lenders and the L/C Issuer acknowledges that (a) the
Information may include material non-public information concerning Borrower or a
subsidiary thereof, as the case may be, (b) it has developed compliance
procedures regarding the use of material non-public information and (c) it will
handle such material non-public information in accordance with applicable Law,
including Federal and state securities Laws.

      


      10.7         Right of Setoff.  If an
Event of Default shall have occurred and be continuing, each Lender and the L/C
Issuer is hereby authorized at any time and from time to time, to the fullest
extent permitted by applicable law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final, in whatever currency)
at any time held and other obligations (in whatever currency) at any time owing
by such Lender or the L/C Issuer to or for the credit or the account of Borrower
against any and all of the obligations of Borrower now or hereafter existing
under this Agreement or any other Loan Document to such Lender or the L/C
Issuer, irrespective of whether or not such Lender or the L/C Issuer shall have
made any demand under this Agreement or any other Loan Document and although
such obligations of Borrower may be contingent or unmatured or are owed to a
branch or office of such Lender or the L/C Issuer different from the branch or
office holding such deposit or obligated on such indebtedness.  The
rights of each Lender and the L/C Issuer under this Section are in addition to
other rights and remedies (including other rights of setoff) that such Lender,
the L/C Issuer or their respective Affiliates may have.  Each Lender
and the L/C Issuer agrees to notify Borrower and Administrative Agent promptly
after any such setoff and application, provided that the
failure to give such notice shall not affect the validity of such setoff and
application.

      


      10.8         No Third Parties
Benefited.  This
Agreement is made and entered into for the sole protection and benefit of the
parties signing this Agreement and their successors and assigns.  No
trust is created by this Agreement and no other persons or entities shall have
any right of action under this Agreement or any right to the Loan
funds.

      


      10.9     
   Payments Set
Aside.  To the
extent that any payment by or on behalf of Borrower, Guarantor or any Permitted
Affiliate is made to Administrative Agent, the L/C Issuer or any Lender, or
Administrative Agent, the L/C Issuer or any Lender exercises its right of
setoff, and such payment or the proceeds of such setoff or any part thereof is
subsequently invalidated, declared to be fraudulent or preferential, set aside
or required (including pursuant to any settlement entered into by Administrative
Agent, the L/C Issuer or such Lender in its discretion) to be repaid to a
trustee, receiver or any other party, in connection with any Insolvency
Proceeding or otherwise, then (a) to the extent of such recovery, the obligation
or part thereof originally intended to be satisfied shall be revived and
continued in full force and effect as if such payment had not been made or such
setoff had not occurred, and (b) each Lender and the L/C Issuer severally agrees
to pay to Administrative Agent upon demand its applicable share (without
duplication) of any amount so recovered from or repaid by Administrative Agent,
plus interest thereon from the date of such demand to the date such payment is
made at a rate per annum equal to the Federal Funds Rate from time to time in
effect.  The obligations of the Lenders and the L/C Issuer under
clause (b) of the preceding sentence shall survive the payment in full of the
Obligations and the termination of this Agreement.


      
        
           


        

        
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      10.10       Counterparts; Integration;
Effectiveness.  This
Agreement may be executed in counterparts (and by different parties hereto in
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract.  This
Agreement and the other Loan Documents constitute the entire contract among the
parties relating to the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject matter
hereof.  This Agreement shall become effective when it shall have been
executed by Administrative Agent and when Administrative Agent shall have
received counterparts hereof that, when taken together, bear the signatures of
each of the other parties hereto.  Delivery of an executed counterpart
of a signature page of this Agreement by telecopy shall be effective as delivery
of a manually executed counterpart of this Agreement.

      


      10.11       Survival of Representations
and Warranties.  All
representations and warranties made hereunder and in any other Loan Document or
other document delivered pursuant hereto or thereto or in connection herewith or
therewith shall survive the execution and delivery hereof and
thereof.  Such representations and warranties have been or will be
relied upon by Administrative Agent and each Lender, regardless of any
investigation made by Administrative Agent or any Lender or on their behalf and
notwithstanding that Administrative Agent or any Lender may have had notice or
knowledge of any Default or Event of Default at the time of any credit
extension, and shall continue in full force and effect as long as any Loan or
any other Obligation hereunder shall remain unpaid or unsatisfied or any Letter
of Credit shall remain outstanding.

      


      10.12      
Severability.  If any
provision of this Agreement or the other Loan Documents is held to be illegal,
invalid or unenforceable, (a) the legality, validity and enforceability of the
remaining provisions of this Agreement and the other Loan Documents shall not be
affected or impaired thereby and (b) the parties shall endeavor in good faith
negotiations to replace the illegal, invalid or unenforceable provisions with
valid provisions the economic effect of which comes as close as possible to that
of the illegal, invalid or unenforceable provisions.  The invalidity
of a provision in a particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.

      


      10.13       Replacement of
Lenders.  If any
Lender requests compensation under Section 3.4, or if
the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.1 or Section 3.3, or if
any Lender is a Defaulting Lender, then the Borrower may, at its sole expense
and effort, upon notice to such Lender and Administrative Agent, require such
Lender to assign and delegate, without recourse (in accordance with and subject
to the restrictions contained in, and consents required by, Section 10.5), all of
its interests, rights and obligations under this Agreement and the related Loan
Documents to an assignee that shall assume such obligations (which assignee may
be another Lender, if a Lender accepts such assignment), provided
that:

      


      (a)           the
Borrower shall have paid to Administrative Agent the assignment fee specified in
Section
10.5(b);

      


      (b)           such
Lender shall have received payment of an amount equal to the outstanding
principal of its Loans and L/C Advances, accrued interest thereon, accrued fees
and all other amounts payable to it hereunder and under the other Loan Documents
(including any amounts under Section 3.4) from the
assignee (to the extent of such outstanding principal and accrued interest and
fees) or the Borrower (in the case of all other amounts);


      
        
           


        

        
          87

          
            

          

        

        
           


        

      


      (c)           in
the case of any such assignment resulting from a claim for compensation under
Section 3.3 or
payments required to be made pursuant to Section 3.1, such
assignment will result in a reduction in such compensation or payments
thereafter; and

      


      (d)           such
assignment does not conflict with applicable Laws.

      


      (e)           A
Lender shall not be required to make any such assignment or delegation if, prior
thereto, as a result of a waiver by such Lender or otherwise, the circumstances
entitling the Borrower to require such assignment and delegation cease to
apply.

      


      10.14       Governing Law; Jurisdiction;
Etc.

      


      (a)           GOVERNING LAW.  THIS
AGREEMENT IS TO BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE INTERNAL
LAWS OF THE STATE OF CALIFORNIA (AS PERMITTED BY SECTION 1646.5 OF THE
CALIFORNIA CIVIL CODE OR ANY SIMILAR SUCCESSOR PROVISION), WITHOUT GIVING EFFECT
TO ANY CHOICE OF LAW RULE THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY
JURISDICTION OTHER THAN THE INTERNAL LAWS OF THE STATE OF CALIFORNIA TO THE
RIGHTS AND DUTIES OF THE PARTIES.

      


      (b)           SUBMISSION TO
JURISDICTION.  BORROWER
AND ADMINISTRATIVE AGENT EACH IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR
ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE
STATE OF CALIFORNIA SITTING IN SAN FRANCISCO COUNTY AND OF THE UNITED STATES
DISTRICT COURT OF THE NORTHERN DISTRICT OF CALIFORNIA, AND ANY APPELLATE COURT
FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY
JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES
THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN SUCH CALIFORNIA STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, IN SUCH FEDERAL COURT.  EACH OF THE PARTIES HERETO
AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR
IN ANY OTHER MANNER PROVIDED BY LAW.  NOTHING IN THIS AGREEMENT OR IN
ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT ADMINISTRATIVE AGENT, ANY
LENDER OR THE L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THE BORROWER OR
ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION WHERE THE BORROWER OR ITS
PROPERTIES ARE LOCATED.


      
        
           


        

        
          88

          
            

          

        

        
           


        

      


      (c)           WAIVER OF VENUE.  BORROWER
AND ADMINISTRATIVE AGENT EACH IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED
TO IN PARAGRAPH (B) OF THIS SECTION.  EACH OF THE PARTIES HERETO
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR
PROCEEDING IN ANY SUCH COURT.

      


      (d)           SERVICE OF
PROCESS.  EACH
PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED
FOR NOTICES IN SECTION
10.2(a).  NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF
ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE
LAW.

      


      10.15       Waiver of Jury
Trial.  EACH
PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED
ON CONTRACT, TORT OR ANY OTHER THEORY).  EACH PARTY HERETO (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES
THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION.

      


      10.16       Judicial
Reference.  If any
action or proceeding by or against any party hereto in connection with any of
the transactions contemplated by this Agreement or any other Loan Document is
filed in a forum in which predispute waivers of the right to trial by jury are
invalid under applicable law, (a) the court shall, and is hereby directed to,
make a general reference pursuant to California Code of Civil Procedure Section
638 (or similar applicable law) to a referee (who shall be a single active or
retired judge) to hear and determine all of the issues in such action or
proceeding (whether of fact or of law) and to report a statement of decision,
provided that at the option of any party to such proceeding, any such issues
pertaining to a “provisional remedy” (or similar term) as defined in California
Code of Civil Procedure Section 1281.8 (or similar applicable law) shall be
heard and determined by the court, and (b) the prevailing party, or the
non-dismissing party in the event of a voluntary dismissal by the party
instituting the action, shall be entitled to the full amount of all fees and
expenses of any referee appointed in such action or proceeding.

      



      
        
           


        

        
          89

          
            

          

        

        
           


        

      


      10.17       USA PATRIOT Act
Notice.  Each
Lender that is subject to the Act (as hereinafter defined) and Administrative
Agent (for itself and not on behalf of any Lender) hereby notifies Borrower that
pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)) (the “Act”), it is required
to obtain, verify and record information that identifies Borrower, which
information includes the name and address of Borrower and other information that
will allow such Lender or Administrative Agent, as applicable, to identify
Borrower in accordance with the Act.

      


      10.18       Time of the
Essence.  Time is
of the essence of the Loan Documents.

      


      10.19       No Fiduciary
Relationship.  In
connection with all aspects of each transaction contemplated by the Loan
Documents, Borrower, Guarantor and each Permitted Affiliate acknowledges and
agrees that: (i) the Loan Documents and any related arranging or other services
described in any of the Loan Documents (or in any commitment letter by PNC Bank,
the Arranger or any affiliate thereof) is an arm’s-length commercial transaction
between Borrower and its affiliates, on the one hand, and the Arranger, on the
other hand, and Borrower, Guarantor, each Permitted Affiliate and their
respective affiliates are capable of evaluating and understanding and understand
and accept the terms, risks and conditions of the transactions contemplated by
the Loan Documents; (ii) in connection with the process leading to such
transaction, PNC Bank and the Arranger each is and has been acting solely as a
principal and is not the financial advisor, agent or fiduciary, for Borrower,
Guarantor, any Permitted Affiliate or any of their respective affiliates,
stockholders, creditors or employees or any other party; (iii) neither PNC Bank
nor the Arranger has assumed or will assume an advisory, agency or fiduciary
responsibility in Borrower’s, Guarantor’s, any Permitted Affiliate’s or any of
their respective affiliates’ favor with respect to any of the transactions
contemplated by the Loan Documents or the process leading thereto (irrespective
of whether PNC Bank or the Arranger has advised or is currently advising any
such Person or its affiliates on other matters) and neither PNC Bank nor the
Arranger has any obligation to Borrower, Guarantor, any Permitted Affiliate or
any of their respective affiliates with respect to the transactions contemplated
by the Loan Documents except those obligations expressly set forth herein and
therein; (iv) PNC Bank and the Arranger and their respective affiliates may be
engaged in a broad range of transactions that involve interests that differ from
those of Borrower, Guarantor, the Permitted Affiliates and their respective
affiliates and PNC Bank and the Arranger have no obligation to disclose any of
such interests by virtue of any advisory, agency or fiduciary relationship; and
(v) PNC Bank and the Arranger have not provided any legal, accounting,
regulatory or tax advice with respect to any of the transactions contemplated by
the Loan Documents and Borrower, Guarantor, any Permitted Affiliate and their
respective affiliates have consulted their own legal, accounting, regulatory and
tax advisors to the extent they have deemed appropriate.  Borrower,
Guarantor and each Permitted Affiliate hereby waive and release, to the fullest
extent permitted by law, any claims that it may have against PNC Bank and the
Arranger with respect to any breach or alleged breach of agency or fiduciary
duty relating to the transactions contemplated by the Loan
Documents.

      


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          90

          
            

          

        

        
           


        

      


      IN
WITNESS WHEREOF, Borrower and the other parties hereto have executed this
Agreement as of the date first above written.

       

      ESSEX
PORTFOLIO, L.P.,

      a
California limited partnership

      


      
        	
                BY:

              	
                ESSEX
      PROPERTY TRUST, INC.,

              	 
      
	 
      	
                a
      Maryland corporation, its general partner

              	 
      
	 
      	 
      	 
      	 
      
	 
      	
                By:

              	 
      	 
      
	 
      	 
      	
                Jordan
      E. Ritter

              	 
      
	 
      	 
      	
                Senior
      Vice President

              	 
      
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	
                925
      East Meadow Drive

              	 
      
	 
      	
                Palo
      Alto, CA 94303

              	 
      
	 
      	
                Attn:

              	
                Mark
      J. Mikl (facsimile: (650) 843-1514)

              	 
      
	 
      	 
      	
                Jordan
      E. Ritter (facsimile: (650) 858-1372)

              	 
      
	 
      	 
      	
                Michael
      T. Dance (facsimile: (650) 858-0139)

              	 
      
	 
      	
                Internet
      Website: www.essexpropertytrust.com

              	 
      


      

      
 

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      PNC
BANK, NATIONAL ASSOCIATION,

      as
Administrative Agent

      


      
        	
                By:

              	 
      	 
      
	 
      	
                Karen
      J. Kennedy, Vice President

              	 
      


      

      
 

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      PNC BANK, NATIONAL
ASSOCIATION,

      as L/C
Issuer, Swing Line Lender and Lender

       

      


      
        	
                By:

              	 
      	 
      
	 
      	
                Karen
      J. Kennedy, Vice President

              	 
      


      

      


      


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      UNION
BANK, N.A.,

      as
Lender

      


      


      
        	
                By:

              	 
      	 
      
	 
      	
                Name:

              	 
      	 
      
	 
      	
                Title:

              	 
      	 
      


      

      
 

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      COMERICA
BANK,

      as
Lender

      


      


      
        	
                By:

              	 
      	 
      
	 
      	
                Casey
      L. Stevenson

              	 
      
	 
      	
                Title:

              	 
      	 
      


      

      


      


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      KEYBANK
NATIONAL ASSOCIATION,

      as
Lender

      


      


      
        	
                By:

              	 
      	 
      
	 
      	
                Jason
      R. Weaver, Senior Vice President

              	 
      


      

      
 

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      US
BANK, NATIONAL ASSOCIATION

      as
Lender

      


      


      
        	
                By:

              	 
      	 
      
	 
      	
                Ben
      Lewis, Vice President

              	 
      


      

      


      


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      CHEVY
CHASE BANK, F.S.B.,

      as
Lender

       

      


      
        	
                By:

              	 
      	 
      
	 
      	
                Name:

              	 
      
	 
      	
                Title:

              	 
      


      

      
 

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      WELLS
FARGO BANK, NATIONAL ASSOCIATION

      as
Lender

       

      


      
        	
                By:

              	 
      	 
      
	 
      	
                Torsten
      Galley, Vice President

              	 
      


      


      
        
           


        

        
          
          

          
            

          

        

        
           


        

      


      CONSENT OF
GUARANTOR

      


      Reference
is made to that certain Revolving Credit Agreement dated as of December 18,
2009 (the “Credit
Agreement”).

       

      Essex
Property Trust, Inc., a Maryland corporation, as the “Guarantor” under the
Credit Agreement (a) acknowledges and consents to the Credit Agreement, (b)
makes the representations set forth in Article 7 of the
Credit Agreement that apply to Guarantor, and (c) agrees to be bound by the
covenants of Articles
6 and 10
of the Credit Agreement that apply to Guarantor.

       

      


      Dated as
of December 18, 2009

      


      


      ESSEX
PROPERTY TRUST, INC.,

      a
Maryland corporation, as Guarantor

      


      


      
        	
                By:

              	 
      	 
      
	 
      	
                Jordan
      E. Ritter

              	 
      
	 
      	
                Senior
      Vice President

              	 
      


      

      


      925 East
Meadow Drive

      Palo
Alto, CA 94303

      Attn.:
Mark J. Mikl, Jordan E. Ritter and Michael T. Dance


      
        
           


        

        
          
          

          
            

          

        

        
           


        

      


      CONSENT OF PERMITTED
AFFILIATES

       

      Reference
is made to that certain Revolving Credit Agreement dated as of December 18,
2009 (the “Credit
Agreement”).

       

      Each of
the undersigned, as “Permitted Affiliates” under the Credit Agreement, (a)
acknowledges and consents to the Credit Agreement, (b) makes the representations
set forth in Article
7 of the Credit Agreement that apply to such Permitted Affiliate, and (c)
agrees to be bound by the covenants of Articles 6 and 10 of the Credit
Agreement that apply to such Permitted Affiliate.

       

      Dated as
of December 18, 2009

      


      PERMITTED
AFFILIATES:

      


      
        	
                JMS
      ACQUISITION LLC, a Delaware limited liability company

              	 
      	
                ESSEX
      PARK BOULEVARD, LLC, a Delaware limited liability
    company

              
	 	 	 
	
                By:

              	
                ESSEX
      PORTFOLIO, L.P., a California limited partnership, its sole
      member

              	 
      	
                By:

              	
                Essex
      Portfolio, L.P., a California limited partnership, its sole
      member

              
	 	 	 	 	 
	 
      	
                By:

              	
                Essex
      Property Trust, Inc., a Maryland corporation, its general
      partner

              	 
      	 
      	
                By:

              	
                Essex
      Property Trust, Inc., a Maryland corporation, its general
      partner

              
	 	 	 	 	 	 	 
	 
      	 
      	
                By: 

              	 
      	 
      	 
      	 
      	
                By:  

              	 
      
	 
      	 
      	 
      	
                Name:

              	 
      	 
      	 
      	 
      	
                Name:

              
	 
      	 
      	 
      	
                Title:

              	 
      	 
      	 
      	 
      	
                Title:

              


      

      


       

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                ESSEX
      BRIDLE TRAILS, L.P., a California limited partnership

              	 
      	
                ESSEX
      CHESTNUT APARTMENTS, L.P., a California limited
      partnership

              
	 	 	 
	
                By:

              	
                Essex
      Management Corporation, a California corporation, its general
      partner

              	 
      	
                By:

              	
                Essex
      SPE, LLC, a Delaware limited liability company, its general
      partner

              
	 	 	 	 	 
	 
      	
                By:

              	 
      	 
      	 
      	
                By:

              	
                Essex
      Portfolio, L.P., a California limited partnership, its sole
      member

              
	 	 	
                Name:

              	 	 	 	 
	 
      	 
      	
                Title:

              	 
      	 
      	
                By:

              	
                Essex
      Property Trust, Inc., a Maryland corporation, its general
      partner

              
	 	 	 	 	 	 	 	 
	 
      	 
      	
              	 
      	 
      	 
      	
                By:

              	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	
                Name:

              
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	
                Title:

              


      

      


      
        	
                ESSEX
      COLUMBUS LLC, a Delaware limited liability company

              	 
      	
                ESSEX
      MARINA CITY CLUB, L.P., a California limited
    partnership

              
	 	 	 	 	 
	
                By:

              	
                Essex
      Columbus, Inc.,

              	 
      	
                By:

              	
                Essex
      MCC, LLC,

              
	 
      	
                a
      California corporation,

              	 
      	 
      	
                a
      Delaware limited liability company,

              
	 
      	
                its
      managing member

              	 
      	 
      	
                its
      general partner

              
	 	 	 	 	 	 	 
	 
      	
                By:

              	 
      	 
      	 
      	
                By:

              	
                Essex
      Portfolio, L.P.,

              
	 
      	 
      	
                Name:

              	 
      	 
      	 
      	
                a
      California limited partnership,

              
	 
      	 
      	
                Title:

              	 
      	 
      	 
      	
                its
      sole member

              
	 	 	 	 	 	 	 	 
	 
      	 
      	 
      	 
      	 
      	 
      	
                By:

              	
                Essex
      Property Trust, Inc., a Maryland corporation, its general
      partner

              
	 	 	 	 	 	 	 	 	 
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	
                By:

              	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	
                Name:

              
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	
                Title:

              


      

       

      


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                NEWPORT
      BEACH NORTH LLC, a Delaware limited liability company

              	 
      	
                ESSEX
      EUCLID, LLC, a Delaware limited liability company

              
	 	 	 	 	 
	
                By:

              	
                Newport
      Beach North, Inc.,

              	 
      	
                By:

              	
                Essex
      Portfolio, L.P.,

              
	 
      	
                a
      Delaware corporation,

              	 
      	 
      	
                a
      California limited partnership,

              
	 
      	
                its
      managing member

              	 
      	 
      	
                its
      sole member

              
	 	 	 	 	 	 	 
	 
      	
                By:  

              	 
      	 
      	 
      	
                By:

              	
                Essex
      Property Trust, Inc., a Maryland corporation, its general
      partner

              
	 	 	
                Name:

              	 	 	 	 	 
	 
      	 
      	
                Title:

              	 
      	 
      	 
      	
                By:  

              	 
      
	 
      	 
      	
              	 
      	 
      	 
      	 
      	
                Name:

              
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	
                Title:

              


      

      


      
        	
                ESSEX
      BLUFFS, L.P., a California limited partnership

              	 
      	
                ESSEX
      SUNPOINTE LTD., a California limited partnership

              
	 	 	 	 	 
	
                By:

              	
                Essex
      Management Corporation, a California corporation, its general
      partner

              	 
      	
                By:

              	
                Essex
      Portfolio, L.P., a California limited partnership, its general
      partner

              
	 	 	 	 	 	 	 
	 
      	
                By:  

              	 
      	 
      	 
      	
                By:

              	
                Essex
      Property Trust, Inc., a Maryland corporation, its general
      partner

              
	 	 	
                Name:

              	 	 	 	 	 
	 
      	 
      	
                Title:

              	 
      	 
      	 
      	
                By:  

              	 
      
	 
      	 
      	
              	 
      	 
      	 
      	 
      	
                Name:

              
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	
                Title:

              


      

      


      


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                ESSEX
      GLENBROOK, LLC, a Delaware limited liability company

              	 
      	
                ESSEX
      TRACY DEVELOPMENT, INC., a California corporation

              
	 	 	 
	
                By:

              	
                Essex
      Portfolio, L.P.,

              	 
      	 
      	 
      
	 
      	
                a
      California limited partnership,

              	 
      	
                By:  

              	 
      
	 
      	
                its
      sole member

              	 
      	 
      	
                Name:

              
	 	 	 	 	
                Title:

              
	 
      	
                By:

              	
                Essex
      Property Trust, Inc., a Maryland corporation, its general
      partner

              	 
      	 
      	
                 

              
	 	 	 	 	 	 
	 
      	 
      	
                By:  

              	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	
                Name:

              	 
      	 
      	 
      
	 
      	 
      	 
      	
                Title:

              	 
      	 
      	 
      


      

      


      
        	
                ESSEX
      BERKELEY 4th
      STREET, L.P., a California limited partnership

              	 
      	
                JAYSAC,
      LTD., Texas limited partnership

              
	 	 	 
	
                By:

              	
                Essex
      Berkeley, LLC, a Delaware limited liability company, its general
      partner

              	 
      	
                By:

              	
                Jaysac
      GP Corp., a Delaware corporation, its
      general partner

              
	 	 	 	 	
                 

              
	 
      	
                By:

              	
                Essex
      Portfolio, L.P., a California limited partnership, its sole
      member

              	 
      	
                 

              	
                 

              	 
      
	 	 	 	 	 	
                
                  By:

                

              	 
	 
      	 
      	
                By:

              	
                Essex
      Property Trust, Inc., a Maryland corporation, its general
      partner

              	 
      	 
      	
                 

              	
                Name:

              
	 	 	 	 	 	 	 	Title:
	 
      	 
      	 
      	
                By:

              	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	
                Name:

              	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	
                Title:

              	 
      	 
      	
                 

              	 
      


      

      


      


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                ESSEX
      VIEW POINTE, LLC, a Delaware limited liability company

              	 
      
	 	 	 
	
                By:

              	
                Essex
      Fidelity I Corporation, a California corporation

              	 
      
	 	 	 	 
	 
      	
                By:  

              	 
      	 
      
	 
      	 
      	
                Name:

              	 
      
	 
      	 
      	
                Title:

              	 
      


      

      

        
          
             


          

          
             


            
              

            

          

          
             


          

        

      

       

      EXHIBIT
A-1

      


      UNENCUMBERED
STABILIZED ASSET POOL PROPERTIES

      


      AS
OF DECEMBER 18, 2009

      


       

      
        	
                PROPERTY NAME

              	
                NAME OF OWNER

              	
                #OF UNITS

              	
                LOCATION

              
	
                Marina Cove #

              	
                Essex Portfolio, L.P.

              	
                292

              	
                Santa Clara, PA

              
	
                Foothill Gardens

              	
                Essex Portfolio, L.P.

              	
                132

              	
                San Ramon, CA

              
	
                Foothill/Twin Creeks

              	
                Essex Portfolio, L.P.

              	
                44

              	
                San Ramon, CA

              
	
                Marina City Club #

              	
                Essex Marina City Club,
L.P.

              	
                101

              	
                Marina Del Rey, CA

              
	
                Monterra del Mar (Windsor
      Terrace)

              	
                Essex Portfolio, L.P.

              	
                123

              	
                Pasadena, CA

              
	
                Lofts at Pinehurst, The (Villa
      Scandia)

              	
                Essex Portfolio, L.P.

              	
                118

              	
                Ventura, CA

              
	
                Alpine Country

              	
                JMS Acquisition LLC

              	
                108

              	
                Alpine, CA

              
	
                Cambridge

              	
                JMS Acquisition LLC

              	
                40

              	
                Chula Vista, CA

              
	
                Mesa Village

              	
                JMS Acquisition LLC

              	
                133

              	
                Claremont, CA

              
	
                Tierra del Sol/Norte

              	
                JMS Acquisition LLC

              	
                156

              	
                El Cajon, CA

              
	
                Country Villas

              	
                JMS Acquisition LLC

              	
                180

              	
                Oceanside, CA

              
	
                Vista Capri - North

              	
                JMS Acquisition LLC

              	
                106

              	
                San Diego, CA

              
	
                Shadow Point

              	
                JMS Acquisition LLC

              	
                172

              	
                Spring Valley, CA

              
	
                Salmon Run at Perry Creek

              	
                Essex Portfolio, L.P.

              	
                132

              	
                Bothell, WA

              
	
                Laurels at Mill Creek

              	
                Essex Portfolio, L.P.

              	
                164

              	
                Mill Creek, WA

              
	
                Linden Square

              	
                Essex Portfolio, L.P.

              	
                183

              	
                Seattle, WA

              
	
                Columbus (aka Hampton
Court)

              	
                Essex Columbus LLC

              	
                83

              	
                Glendale, CA

              
	
                Bridle Trails

              	
                Essex Bridle Trails, L.P.

              	
                108

              	
                Kirkland, WA

              
	
                Pinehurst #

              	
                Essex Portfolio, L.P.

              	
                28

              	
                Ventura, CA

              
	
                Woodside Village*

              	
                Newport Beach North LLC

              	
                145

              	
                Ventura, CA

              
	
                Fairway Apartments #

              	
                Essex Portfolio, L.P.

              	
                74

              	
                Newport Beach, CA

              
	
                Cedar Terrace

              	
                JMS Acquisition LLC

              	
                180

              	
                Bellevue, WA

              
	
                Marabella

              	
                Essex Portfolio, L.P.

              	
                60

              	
                Los Angeles, CA

              
	
                Chimney Sweep

              	
                Essex Portfolio, L.P.

              	
                91

              	
                Santa Barbara, CA

              
	
                Belmont Terrace

              	
                Essex Portfolio, L.P.

              	
                71

              	
                Belmont, CA

              
	
                Hope Ranch

              	
                Essex Portfolio, L.P.

              	
                108

              	
                Santa Barbara, CA

              
	
                CBC Colonial

              	
                Essex Portfolio, L.P.

              	
                148

              	
                Santa Barbara, CA

              
	
                Tuscana

              	
                Essex Tracy Development,
    Inc.

              	
                30

              	
                Tracy, CA

              
	
                Monterra Del Sol

              	
                Essex Euclid, LLC

              	
                85

              	
                Pasadena, CA

              
	
                Bluffs, The

              	
                Essex Bluffs, L.P.

              	
                224

              	
                San Diego, CA

              
	
                Woodland Commons

              	
                Essex Sunpointe Ltd.

              	
                236

              	
                Bellevue, WA

              
	
                Foothill Commons

              	
                Essex Sunpointe, Ltd.

              	
                360

              	
                Bellevue, WA

              
	
                Chestnut Street

              	
                Essex Chestnut Apartments,
    L.P.

              	
                96

              	
                Santa Cruz, CA

              
	
                Mariners Place

              	
                Essex Portfolio, L.P.

              	
                105

              	
                Oxnard, CA

              
	
                Monterra Del Rey
(Glenbrook)

              	
                Essex Glenbrook LLC

              	
                84

              	
                Pasadena, CA

              
	
                TOTAL:

              	 
      	
                4,500

              	 
      


      

      


      *
Properties owned at least 99% by Borrower or a Permitted Affiliates

      #
Properties subject to a financeable ground lease; provided, however, as to
Marina Cove, only 1 parcel is subject to such a ground lease.

      


      
        
          
             


          

          
            A-1-1

            
              

            

          

          
             


          

        

      

      


      EXHIBIT
A-2

      


      UNENCUMBERED
WORK IN PROCESS PROPERTIES

      


      AS
OF DECEMBER 18, 2009

      


       

      
        	
                PROPERTY NAME

              	
                NAME OF OWNER

              	
                LOCATION

              
	
                Moorpark

              	
                Essex Portfolio, L.P.

              	
                Moorpark, CA

              
	
                Park Blvd

              	
                Essex Park Boulevard, LLC

              	
                Palo Alto, CA

              
	
                Tasman

              	
                Jaysac, Ltd.

              	
                Sunnyvale, CA

              
	
                Berkeley

              	
                Essex Berkeley 4th Street, L.P.

              	
                Berkeley, CA

              
	
                View Pointe

              	
                Essex View Point, LLC

              	
                Newcastle,
WA

              


      

      


      
        
          
             


          

          
            A-2-1

            
              

            

          

          
             


          

        

      

      


      EXHIBIT
B

      


      FORM
OF NOTICE OF COMMITTED BORROWING OR

      CONVERSION/CONTINUATION

      


      
        	 
      	
                Date:

              


      

      


      
        	
                To:

              	
                PNC
      Bank, National Association, as Administrative
  Agent

              


      

      


      Ladies
and Gentlemen:

      


      Reference
is made to that certain Revolving Credit Agreement dated as of December 18,
2009, among Essex Portfolio L.P., a California limited partnership (“Borrower”), the
financial institutions from time to time party thereto (the “Lenders”), and PNC
Bank, National Association, individually as a Lender and as administrative agent
(in such capacity, “Administrative
Agent”) and as Swing Line Lender and as L/C Issuer (as amended, restated,
extended, supplemented or otherwise modified in writing from time to time, the
“Agreement”;
the terms defined therein being used herein as therein defined).

      


      The
undersigned hereby requests (select one):

      


      
        	
                 
      

              	
                [     ]

              	
                A
      Borrowing of Committed Loans

              


      

      


      
        	
                 
      

              	
                [     ]

              	
                A
      Borrowing of Swing Loans

              


      

      


      
        	
                 
      

              	
                [     ]

              	
                A
      Conversion or Continuation of Committed
Loans

              


      

      


      
        	
                 
      

              	
                [     ]

              	
                Issuance
      of a Letter of Credit (Letter of Credit Application
    enclosed)

              


      

      


      Borrower’s
new Availability under the Agreement $___________.

      


      
        	
                1.

              	
                On
      ______________________________ (a Business
Day).

              


      

      


      
        	
                2.

              	
                In
      the amount of $_______________.

              


      

      


      
        	
                3.

              	
                Comprised
      of [type of credit requested]:

              


      

      


      
        	
                 
      

              	
                [     ]

              	
                Swing
      Loan

              


      

      


      
        	
                 
      

              	
                [     ]

              	
                Reference
      Rate Committed Loan

              


      

      


      
        	
                 
      

              	
                [     ]

              	
                LIBOR
      Committed Loan

              


      

      


      
        	
                 
      

              	
                [     ]

              	
                Letter
      of Credit

              


      

      


      
        	
                4.

              	
                If
      applicable: with an Interest Period of _____
  months.

              


      

      


      The
foregoing request complies with the requirements of [Section 2.3 (for a
Borrowing of Loans and Issuance of Letters of Credit)] [Section 2.7 (for a
conversion/continuation of Loans)] of the Agreement.  The undersigned
hereby certifies that the following statements are true on the date hereof, and
will be true on the above date, before and after giving effect to the
application of the proceeds therefrom:

      


      
        
          
             


          

          
            B-1

            
              

            

          

          
             


          

        

      

      


      (a)           After
giving effect to the requested Borrowing or Letter of Credit, the Outstanding
Amount of Loans and Swing Loans plus the Outstanding Amount of L/C Obligations
shall not exceed the Availability, the aggregate outstanding amount of the Swing
Loans shall not exceed the Swing Line Availability.

      


      (b)           Borrower
and Guarantor, and any Subsidiaries or affiliates whose financial results are
consolidated with those of Borrower and Guarantor for reporting purposes, are in
compliance with all of the material covenants and financial covenants in the
Agreement.

      


      (c)           All
of the representations and warranties contained in the Agreement and the other
Loan Documents are true and correct as of the date hereof and shall be true and
correct on the date of the Borrowing or the issuance of the requested Letter of
Credit, both before and after giving effect to such Borrowing or issuance of the
requested Letter of Credit; provided, however,
that the representations and warranties set forth in the Agreement regarding
financial statements shall be deemed to be made with respect to the financial
statements most recently delivered to Administrative Agent pursuant to the
Agreement.

      


      (d)           No
Default or Event of Default has occurred and is continuing on the date hereof or
after giving effect to the requested extension of credit.

      


      (e)           The
proceeds of the Borrowing, or the purpose of the Letter of Credit, are only as
permitted by the Agreement.

      


      (f)           No
act, omission, change or event which would have a material adverse effect on
Borrower has occurred since the date of the Agreement.

      


      (g)           Enclosed
are the documents and information requested by Lender as a condition to the
requested Borrowing or the issuance of the Letter of Credit.**

      


      
        	
                Dated
      as of _____________, 200__

              	
                ESSEX
      PORTFOLIO, L.P.,

              	 
      
	 
      	
                a
      California limited partnership

              	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
                By:

              	
                Essex
      Property Trust, Inc.,

              	 
      
	 
      	 
      	
                a
      Maryland corporation,

              	 
      
	 
      	 
      	
                its
      General Partner

              	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	
                By:

              	 
      	 
      
	 
      	 
      	
                Name:

              	 
      
	 
      	 
      	
                Title

              	 
      


      

      


      **
Pursuant to Section 9.4 of the Credit Agreement, the proceeds of a Borrowing
must be sent to the Designated Account.

      


      
        
          
             


          

          
            B-2

            
              

            

          

          
             


          

        

      

      


      EXHIBIT
C

      


      FORM
OF LETTER OF CREDIT APPLICATION

      


      
        	
                Application
      for Irrevocable

              	
                PNC
      Bank, National Association

              
	
                Standby
      Letter of Credit

              	
                500
      First Avenue, Third Floor P7-PFSC-03-T

              
	 
      	
                Pittsburgh,
      PA 15219

              
	
                 

                The
      undersigned hereby applies for the establishment of an Irrevocable Standby
      Letter of Credit as set forth below.  This Application is
      delivered under, and such Credit when issued will be subject to, the
      undersigned’s Reimbursement Agreement for Standby Letters of Credit, or
      such other agreement with PNC Bank National Association for the issuance
      and reimbursement of letters of credit, as the case may
  be.

              
	
                Letter
      of Credit to be established as
follows:

              


      

      
        	
                1.

              	

                Date
      of Application

              	 
      	
                2.

              	
                L/C
      No.  (Bank Use
      Only)

              	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	
                3.

              	

                Applicant:
      (name as it is to appear in letter of credit)

              	 
      	
                4.

              	
                Amount:

              	 
      
	 
      	 
      	 
      	 
      	
                5.

              	
                Currency:  __  US
      Dollars   __  Other (Specify)

              	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	
                6

              	
                a.  Expiration
      Date:

              	 
      
	 
      	 
      	 
      	 
      	 
      	
                b.  Place of
      expiration: Pittsburgh, PA __  Other
      _________

              	 
      
	
                7.

              	

                In
      Favor of (Beneficiary) (Leave blank if 11E below applies)

              	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	
                8.

              	
                Transmit
      Credit by (Check One)

              	 
      
	 
      	 
      	
                Name

              	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	
                __

              	
                Courier

              	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	
                Address
      - (Do Not Use a PO Box)

              	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	
                Attention:

              	 
      	 
      	
                __

              	
                Teletransmission

              	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	
                Telephone:

              	
                Fax:

              	 
      	
                __

              	
                Other
      (Specify)

              	 
      


      

      
        	 
      	
                Credit available by sight draft(s) on you or your
      correspondent, at your option, and accompanied by the following
      documents:

              
	
                9.  __

              	
                Beneficiary’s
      statement purportedly signed by one of its authorized officers reading as
      follow:  (Indicate within quotation marks the exact wording to
      appear on the statement to be presented.)

              
	 
      	
                “

              
	 
      	 
      
	 
      	"
	
                10.  __

              	
                Other
      Documents:

              
	 
      	 
      
	 
      	 
      
	
                11.  __

              	
                Other
      Instructions: (Mark or complete applicable
instructions)

              
	 
      	 
      


      

      
        
          	 
      	
                  A.  __

                	
                  The
      wording of the credit should be similar to the attached specimen/addendum
      forming a part hereof.  Please initial all
  pages.

                
	 
      	B.  __
      	
                  Clean
      credit: available by sight draft only; no certification of default or
      beneficiary’s entitlement to draw on the letter of credit
      required.

                
	 
      	
                  C.  __

                	
                  Letter
      of credit to be automatically renewable with at least ___ days notice for
      non-renewal by the Bank.

                
	 
      	
                  D.  __

                	
                  Partial drawings:

                	
                  __  Permitted

                
	 
      	 
      	 
      	
                  __  Not
      Permitted (i.e., only one drawing for the full
      amount is allowed
      )

                
	 
      	 
      	 
      	
                  If
      partial drawings are not
      permitted, is the beneficiary permitted to draw for less than the
      full amount?

                
	 
      	 
      	 
      	
                  __  yes   __  no
      (if no, then only one drawing for the
      full amount is
      permitted)

                


        

         

        
          	 
      	
                  E.  __

                	
                  Letter
      of Credit is to be issued in favor of foreign bank to support their
      guarantee letter of credit to Applicant s customer:

                
	 
      	 
      	
                  1)

                	
                  Name
      and address of beneficiary of guarantee/letter of credit issued by foreign
      bank:

                
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	 
      	
                  2)

                	
                  Name
      city and country of foreign bank if designated.  If no foreign
      bank is designated, PNC Bank will select a correspondent
    bank.

                
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	
                  F.  __

                	
                  Letter
      of Credit is to be advised through (name and address of bank, if
      known):

                
	 
      	 
      	
                  (If
      beneficiary is located outside the U.S. and no advising bank is
      designated, the Credit will be advised through a correspondent bank of PNC
      Bank.)

                
	 
      	 
      	 
      	 
      
	 
      	 
      	
                  1.  __

                	
                  Request
      advising bank to add their confirmation

                
	 
      	 
      	
                  2.  __

                	
                  Advising/
      confirming bank charges are for account
      of   __  Applicant   __  Beneficiary

                
	 
      	 
      	 
      	 
      
	
                  12.

                	Special
      Instructions:


        

      

      


      
        
          
             


          

          
            C-1

            
              

            

          

          
             


          

        

      

       

      
        	
                This
      Credit will be (i) issued by PNC Bank National Association unless
      otherwise agreed, and (ii) subject to the current revision of the Uniform
      Customs and Practice for Documentary Credits or International Standby
      Practices 1998 (ISP98) at PNC Bank’s
discretion.

              


      

      
        	 
      	
                13.  Obligor

                Name:

              	 
      	 
      
	 
      	
                By:

              	 
      	
                (Signature)

              
	 
      	
                Print
      Name:

              	 
      	 
      


      

      
        	
                See
      reverse side for instructions

              	 
      	 
      	 
      	 
      	 
      
	
                For
      assistance, please call Customer Service at (800) 682-4689

              	
                Title:

              	 
      	 
      	 
      	 
      
	 
      	
                Tel:

              	 
      	 
      	
                Fax:

              	 
      


      

      


      
        
          
             


          

          
            C-2

            
              

            

          

          
             


          

        

      

      


      Instructions
for Application for Irrevocable Standby Letter of Credit

      


      The
following are step-by-step instructions for completing this form:

      


      
        	
                1.

              	
                Date
      of Application - Insert the date on which the Applicant completed the
      Application.

              


      

      


      
        	
                2.

              	
                L/C
      No. (Bank Use Only) - Leave blank.  This area will be completed
      by Letter of Credit department.

              


      

      


      
        	
                3.

              	
                For
      Account of (Applicant) - Required Field - Complete name and address of the
      Applicant of the letter of credit.  The name in this section
      should be exactly as the Applicant wants it to appear in the letter of
      credit.

              


      

      


      
        	
                4.

              	
                Amount
      - Required Field - Insert amount of letter of
  credit.

              


      

      


      
        	
                5.

              	
                Currency
      - Required Field - Insert currency of letter of
  credit.

              


      

      


      
        	
                6.

              	
                (a)
      Expiration Date - Required Field - Insert expiration date of letter of
      credit.

              


      

      (b) Place
of Expiration - Unless otherwise specified, the letter of credit will expire at
the Bank’s office in Pittsburgh, PA.

      


      
        	
                7.

              	
                In
      Favor Of (Beneficiary) - Required Field - Complete name and address of
      beneficiary as it should appear in the letter of credit.  It is
      very important that this section be completed with an attention party of
      the beneficiary to ensure that the letter of credit is delivered to the
      proper party.  Also, please provide a telephone number for the
      attention party.

              


      

      


      
        	
                8.

              	
                Transmit
      By - Complete with any special delivery instructions.  Unless
      otherwise specified, the letter of credit will be delivered by overnight
      courier for domestic transactions.  For foreign transactions,
      the letter of credit will be issued via
  SWIFT/TELEX.

              


      

      


      
        	
                9.

              	
                Beneficiary’s
      Certification - Unless you have attached a specimen format for the letter
      of credit, this section should set forth the statement that the
      beneficiary must certify to the Bank in order to make a
      drawing.  This section is necessary for the Letter of Credit
      Department to correctly draft the letter of
  credit.

              


      

      


      
        	
                10.

              	
                Other
      Documents - This is an optional field for other documents, statements or
      certifications which the beneficiary must present to draw against the
      letter of credit.

              


      

      


      A.   Other
Instructions -

      
        	
                 
      

              	
                (a)

              	
                If
      applicable, place an “X”‘ in this box and attach to the Application a copy
      of the requested format with all pages
  initialed.

              


      

      
        	
                 
      

              	
                (b)

              	
                Place
      an “X” in this box if the letter of credit is to be issued without a
      beneficiary’s certification.  In this event, the letter of
      credit will be payable to the beneficiary on demand or by presentation of
      a sight draft only.  No other documentation would be required
      for the beneficiary to obtain
payment.

              


      

      
        	
                 
      

              	
                (c)

              	
                Place
      an “X” in this box if the letter of credit is to be automatically
      renewable.  This means that unless a notice is sent by the Bank
      to the beneficiary that the letter of credit will not be further extended,
      it will automatically be renewed for the next year (or other applicable
      period).  It is the obligation of the Applicant to notify the
      Bank that the letter of credit is no longer required and a non-renewal
      notice should be sent

              


      

      
        	
                 
      

              	
                (d)

              	
                Place
      an “X” in the appropriate box with regard to partial drawings by the
      beneficiary.  If partial drawings are not permitted, place an
      “X” in the appropriate box as to whether the beneficiary is permitted to
      draw for less than the
      full amount.  If “no” is designated, then only one
      drawing for the
      full amount will be
      permitted.

              


      

      
        	
                 
      

              	
                (e)

              	
                If
      the Applicant needs to provide a foreign entity with a guarantee or a
      standby letter of credit issued by a foreign bank, PNC Bank will issue a
      letter of credit in favor of the foreign bank to support the guarantee or
      letter of credit to be issued by the foreign bank.  If the
      foreign bank has been designated, it should be entered in this section,
      otherwise a PNC Bank correspondent will be
used.

              


      

      
        	
                 
      

              	
                (f)

              	
                This
      field should be completed if the letter of credit is to be
      advised/confirmed through the beneficiary’s bank.  If the
      beneficiary is located outside the United States and no advising bank is
      designated, a PNC Bank correspondent bank will be
  used.

              


      

      
        	
                 
      

              	
                (i)

              	
                Place
      an “ X” in this box if the beneficiary has instructed that the advising
      bank must also confirm the letter of
credit.

              


      

      
        	
                 
      

              	
                (ii)

              	
                Place
      an “X” in the appropriate box as to who will pay the fees and charges of
      the advising/confirming bank the amount of which are determined by the
      advising/confirming bank.  If this field is left blank, fees
      will be charged to the Applicant’s
account.

              


      

      


      Note: Under the Uniform
Customs and Practice for Documentary Credits, the Applicant may be required to
pay the advising/confirming bank charges if the beneficiary refuses to do so,
even if the letter of credit provides that such charges are for the
beneficiary’s account.

      


      
        	
                11.

              	
                Special
      Instructions - Complete with any special instructions, i.e., mailing
      instructions, fax information, special handling, special instructions to
      be included in the letter of
credit.

              


      

      


      
        	
                12.

              	
                Type/print
      complete name of Obligor and name and title of person who signed the
      Application.  If a parent company is applying for a letter of
      credit on behalf of its subsidiary, the name of the parent company and
      signature of an authorized officer of the parent company should appear in
      this section.  The name of the Applicant as it should appear in
      the letter of credit should be stated in Section
  3.

              


      

      


      
        
          
             


          

          
            C-3

            
              

            

          

          
             


          

        

      

      


      EXHIBIT
D

      


      COMPLIANCE
CERTIFICATE

      


      _______,
20___

      


      PNC Bank,
National Association

      PNC
Firstside Center, 4th Floor

      500 First
Avenue

      Pittsburgh,
PA 15219

      Attention:_______________

      


      Re:  Credit
Agreement dated as of December 18, 2009 as amended and modified from time to
time (the “Agreement”), among Essex Portfolio L.P., a California limited
partnership (“Borrower”), the several financial institutions from time to time
party thereto (each a “Lender” and collectively, the “Lenders”), and PNC Bank,
National Association, individually as a Lender and as administrative agent for
the Lenders (in such capacity, “Administrative Agent”), and as Swing Line Lender
and L/C Issuer

      


      To the
Agent:

      


      Reference
is made to the above-mentioned Agreement.  Capitalized terms used
herein and not defined herein shall have the meanings ascribed to such terms in
the Agreement.

      


      The
undersigned Responsible Officer hereby certifies as of the date hereof that he
is the Principal Financial Officer of the General Partner of Borrower, and that,
as such, he is authorized to execute and deliver this Certificate to
Administrative Agent on the behalf of Borrower, and that:

      


      1.           The
undersigned has reviewed and is familiar with the terms of the Agreement and has
made, or has caused to be made under his supervision, a detailed review of the
transactions and condition (financial or otherwise) of Borrower during the
accounting period covered by the attached financial statements.

      


      2.           A
review of the activities of Borrower during such fiscal period has been made
under the supervision of the undersigned with a view to determining whether
during such fiscal period Borrower performed and observed all its Obligations
under the Loan Documents, and

      


      3.           The
representations and warranties of Borrower contained in Article 7 of the
Agreement, and any  representations and warranties of Borrower,
Guarantor and each Permitted Affiliate that are contained in any document
furnished at any time under or in connection with the Loan Documents, are true
and correct on and as of the date hereof, except to the extent that such
representations and warranties specifically refer to an earlier date, in which
case they are true and correct as of such earlier date, and except that for
purposes of this Compliance Certificate, the representations and warranties
contained in Section
7.6 of the Agreement shall be deemed to refer to the most recent
statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.3 of the
Agreement, including the statements in connection with which this Compliance
Certificate is delivered.

      


      
        
          
             


          

          
            D-1

            
              

            

          

          
             


          

        

      

      


      4.           As
of the date of this Certificate the aggregate Outstanding Amount of Loans and
Swing Loans plus the Outstanding Amount of L/C Obligations is less than or equal
to the Availability.

      


      5.           The
financial covenant analyses and information set forth on the Annexes and
Schedules attached hereto are true and accurate on and as of the date of this
Certificate.

      


      [Signature
Page Follows]

      


      
        
          
             


          

          
            D-2

            
              

            

          

          
             


          

        

      

      


      IN
WITNESS WHEREOF, the undersigned has executed this Certificate as of
___________.

      


      
        	 
      	
                ESSEX
      PORTFOLIO, L.P.,

              
	 
      	
                a
      California limited partnership

              
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	
                By:

              	
                ESSEX
      PROPERTY TRUST, INC.,

              
	 
      	 
      	 
      	
                a
      Maryland corporation

              
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	
                By:

              	 
      
	 
      	 
      	 
      	
                Name:
      Michael T. Dance

              
	 
      	 
      	 
      	
                Title:
      Executive VP, Chief Financial
Officer

              


      

      


      
        
          
             


          

          
            D-3

            
              

            

          

          
             


          

        

      

      


      Annex
A

      FINANCIAL
COVENANT COMPLIANCE SUMMARY

      _______,
20___

      (Dollars
in Thousands)

       

      
        	
                [reserved]

              	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	
                Maximum
      Total Liabilities to Gross Asset Value

              	 
      	 
      	 
      	 
      
	
                (Section
      6.9)

              	 
      	 
      	 
      	 
      
	
                See
      Annex A-2

              	 
      	
                Not
      to exceed

              	 
      	
                0.60
      :1.00

              
	 
      	 
      	
                Actual

              	 
      	 
      
	 
      	 
      	
                Margin
      (increase to total liabilities)

              	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	
                Fixed
      Charge Coverage Ratio (Section 6.11)

              	 
      	 
      	 
      	 
      
	
                See
      Annex A-3

              	 
      	
                Not
      less than

              	 
      	
                1:50
      :1.00

              
	 
      	 
      	
                Actual

              	 
      	 
      
	 
      	 
      	
                Margin
      (change to fixed charges)

              	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	
                Unsecured
      Debt to Unencumbered Property Value

              	 
      	 
      	 
      	 
      
	
                (Section
      6.10(a))

              	 
      	 
      	 
      	 
      
	
                See
      Annex A-4

              	 
      	
                Not
      to exceed

              	 
      	
                0.60
      :1.00

              
	 
      	 
      	
                Actual

              	 
      	 
      
	 
      	 
      	
                Margin

              	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	
                Secured
      Recourse Debt to Gross Asset

              	 
      	 
      	 
      	 
      
	
                Value
      (Section 6.10(c))

              	 
      	 
      	 
      	 
      
	
                See
      Annex A-5

              	 
      	
                Not
      to exceed

              	 
      	
                0.10
      :1.00

              
	 
      	 
      	
                Actual

              	 
      	 
      
	 
      	 
      	
                Margin

              	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	
                (a)
      Unencumbered Development Property to

              	 
      	 
      	 
      	 
      
	
                Unencumbered
      Asset Pool Value (Section 4.1(b))*

              	 
      	 
      	 
      	 
      
	
                See
      Annex A-6

              	 
      	
                Not
      to exceed

              	 
      	
                0.25
      :1.00

              
	 
      	 
      	
                Actual

              	 
      	 
      
	 
      	 
      	
                Margin

              	 
      	 
      
	
                *Not
      to exceed 0.20:1.00 at such time that Essex Property Trust, Inc. has less
      than a BBB- or Baa3 (as applicable) rating from S&P or
      Moody’s

              	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	
                (b)
      Maximum Quarterly Dividends (Section 6.13)

              	 
      	 
      	 
      	 
      


      

      
        	
                See
      Annex A-7

              	
                Not
      to exceed 95% of Funds From Operations

              	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	
                Actual
      (Line 7(b))

              	 
      	 
      


      

      


      
        
          
             


          

          
            D-4

            
              

            

          

          
             


          

        

      

       

      
        	 
      	 
      	 
      	 
      	
                (Under)/Over

              	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	
                (c)

              	
                Development
      – percentage of Gross Asset Value (Section 6.6)

              	 
      	
                Total
      actual

              	 
      	 
      
	
                See
      Annex A-8

              	 
      	
                Not
      to exceed 35%

              	 
      	 
      
	 
      	 
      	 
      	 
      	
                (Under)/Over

              	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	
                (i)

              	
                Entitled
      and Unentitled Land 6.6(a)

              	 
      	
                Not
      to exceed 35%

                (Under)/Over

              	 
      	 
      
	 
      	
                (ii)

              	
                Total
      development properties 6.6(b)

              	 
      	
                Not
      to exceed 35%

                (Under)/Over

              	 
      	 
      
	 
      	
                (iii)

              	
                Joint
      Venture Investments 6.6(c)

              	 
      	 
      	 
      	 
      
	 
      	
                (iv)

              	
                Capital
      Interests in Acquisition down-REITs 6.6(d)

              	 
      	 
      	 
      	 
      
	 
      	
                (v)

              	
                Real
      estate assets (other than multifamily residential properties), or
      investments in, or loans to, companies that own and/or develop real estate
      (other than multifamily residential properties) 6.6(e)

              	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	
                (9)

              	
                Debt
      Service Coverage Ratio (Section 6.12)

              	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	
                (a)

              	
                Net
      Operating Income for the Unencumbered

              	 
      	 
      	 
      	 
      
	
                Asset
      Pool for the most recent consecutive calendar quarter

              	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	
                (b)

              	
                Debt
      Service on Unsecured Debt for the most recent

              	 
      	 
      	 
      	 
      
	
                consecutive
      calendar quarter

              	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	
                (c)

              	
                Ratio
      of (a). to
      (b).

              	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	
                Minimum
      Required: 1.75: 1.00

              	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      


      

      


      
        
          
             


          

          
            D-5

            
              

            

          

          
             


          

        

      

      


      Annexes
to Compliance Certificate

      


      


      ________,
20____

      


      (Dollars
in Thousands)

      


      
        	
                Annex
      A-1

              
	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	
                (a)

              	
                [reserved]

              	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	
                Annex
      A-2

              
	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	
                (b)

              	
                Maximum
      Total Liabilities to Gross Asset Value (Section 6.9)

              	 
      	 
      
	 
      	
                Not
      to exceed 60%

              	 
      	 
      
	 
      	
                Actual
      (Line 2(a)(vii) to Line 2(b)(viii))

              	 
      	 
      
	 
      	 
      	
                Margin
      (increase to total liabilities)

              	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	
                (i)

              	
                Maximum
      Total Liabilities

              	 
      	 
      
	 
      	 
      	
                (1)

              	
                Total
      Liabilities of Guarantor and Subsidiaries

              	 
      	 
      
	 
      	 
      	
                (2)

              	
                Add:
      L/C Obligations (Sch. 2)

              	 
      	 
      
	 
      	 
      	
                (3)

              	
                Add:
      Guarantees

              	 
      	 
      
	 
      	 
      	
                (4)

              	
                Add:
      Guarantor and Subsidiaries pro rata share of total liabilities in joint
      ventures (Sch. 7)

              	 
      	 
      
	 
      	 
      	
                (5)

              	
                Add:
      Liabilities of unconsolidated Affiliates recourse to Guarantor or Borrower
      (Sch. 1)

              	 
      	 
      
	 
      	 
      	
                (6)

              	
                Less:
      Minority interest liabilities of Borrower (Sch. 4)

              	 
      	 
      
	 
      	 
      	
                (7)

              	
                Less:
      Down Reits liabilities (Sch. 8)

              	 
      	 
      
	 
      	 
      	
                (8)

              	
                Total
      Liabilities (sum of (i) to (vii))

              	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	
                (ii)

              	
                Gross
      Asset Value:

              	 
      	 
      
	 
      	
                EBITDA
      Calculation:

              	 
      	 
      
	 
      	 
      	 
      	
                a.

              	
                Consolidated
      net income before minority interest

              	 
      	 
      
	 
      	 
      	 
      	
                b.

              	
                Less:
      extraordinary gains

              	 
      	 
      
	 
      	 
      	 
      	
                c.

              	
                Add:
      discontinued operations depreciation and interest expense

              	 
      	 
      
	 
      	 
      	 
      	
                d.

              	
                Add:
      consolidated interest expense

              	 
      	 
      
	 
      	 
      	 
      	
                e.

              	
                Add:
      consolidated provision for federal and state income taxes

              	 
      	 
      
	 
      	 
      	 
      	
                f.

              	
                Add:
      consolidated corporate depreciation expense

              	 
      	 
      
	 
      	 
      	 
      	
                g.

              	
                Add:
      consolidated depreciation expense

              	 
      	 
      
	 
      	 
      	 
      	
                h.

              	
                Add:
      consolidated amortization expense

              	 
      	 
      
	 
      	 
      	 
      	
                i.

              	
                Add:
      other non cash charges and expenses

              	 
      	 
      
	 
      	 
      	 
      	
                j.

              	
                Add:
      extraordinary losses

              	 
      	 
      
	 
      	 
      	 
      	
                k.

              	
                Add:
      prepayment penalties and write off of deferred charges

              	 
      	 
      
	 
      	 
      	 
      	
                l.

              	
                Less:
      minority interest of such EBITDA (Sch. 4)

              	 
      	 
      
	 
      	 
      	 
      	
                m.

              	
                Add:
      JV EBITDA (Sch. 7)

              	 
      	 
      
	 
      	 
      	 
      	
                n.

              	
                Less:
      GAAP Book (income)/loss (Sch. 7)

              	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	
                (1)

              	
                EBITDA
      (sum of (A) through (N))

              	 
      	 
      
	 
      	 
      	
                Deductions
      from EBITDA making up Gross Asset value

              	 
      	 
      


      

      


      
        
          
             


          

          
            D-6

            
              

            

          

          
             


          

        

      

       

      
        	 
      	 
      	 
      	
                a.

              	
                Income
      attributable to properties bought during the fiscal quarter (Sch.
      3)

              	 
      	 
      
	 
      	 
      	 
      	
                b.

              	
                Income
      attributable to Clarewood Office and Palo Alto Office

              	 
      	 
      
	 
      	 
      	 
      	
                c.

              	
                Income
      attributable to properties sold during the fiscal quarter

              	 
      	 
      
	 
      	 
      	 
      	
                d.

              	
                Gain
      on sale of marketable securities

              	 
      	 
      
	 
      	 
      	
                (2)

              	
                Deductions
      from EBITDA (sum of (A) through (C))

              	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	
                (3)

              	
                Quarterly
      EBITDA

              	 
      	 
      
	 
      	 
      	 
      	
                a.

              	
                3Q
      ___

              	 
      	 
      
	 
      	 
      	 
      	
                b.

              	
                2Q
      ___

              	 
      	 
      
	 
      	 
      	 
      	
                c.

              	
                1Q
      ___

              	 
      	 
      
	 
      	 
      	 
      	
                d.

              	
                4Q
      ___

              	 
      	 
      
	 
      	 
      	
                (4)

              	
                Annualized
      EBITDA

              	 
      	 
      
	 
      	 
      	
                (5)

              	
                Capitalization
      rate

              	 
      	 
      
	 
      	 
      	
                (6)

              	
                Preliminary
      Gross Asset Value (Line 2(b)(iv) / Line 2(b)(v))

              	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	
                Addition
      to Preliminary Gross Asset Value

              	 
      	 
      
	 
      	 
      	 
      	
                a.

              	
                Add:
      cash and marketable securities

              	 
      	 
      
	 
      	 
      	 
      	
                b.

              	
                Add:
      Acquisition cost of consolidated asserts acquired during the previous four
      quarters (Sch. 3)

              	 
      	 
      
	 
      	 
      	 
      	
                c.

              	
                Add:
      Prorata share of acquisition price of assets held in joint ventures during
      the previous four quarters (Sch. 3)

              	 
      	 
      
	 
      	 
      	 
      	
                d.

              	
                Add:
      Consolidated development properties (Sch. 6)

              	 
      	 
      
	 
      	 
      	 
      	
                e.

              	
                Add:
      pro rata share of cost of development properties held in joint ventures
      (Sch. 6)

              	 
      	 
      
	 
      	 
      	 
      	
                f.

              	
                Add:
      $4,500,000 if Borrower owns Clarewood office building

              	 
      	 
      
	 
      	 
      	 
      	
                g.

              	
                Add:
      $9,000,000 if Borrower owns 925 and 935 East Meadow Dr office
      building

              	 
      	 
      
	 
      	 
      	
                (7)

              	
                Sum
      of Additions to Preliminary Gross Asset Value (sum of (A) through
      (G))

              	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	
                (8)

              	
                Gross
      Asset Value (Line 2(b)(vi) + Line 2(b)(vii))

              	 
      	 
      


      

      


      
        
          
             


          

          
            D-7

            
              

            

          

          
             


          

        

      

       

      
        	
                Annex
      A-3

              
	
                (c)

              	
                Fixed
      Charge Coverage Ratio (Section 6.11)

              	 
      	 
      
	 
      	 
      	
                Not
      less than

              	 
      	
                1.50

              
	 
      	 
      	
                Actual
      (ratio of Line 3(a) to 3(b))

              	 
      	 
      
	 
      	 
      	
                Margin
      (change to fixed charges)

              	 
      	 
      
	 
      	 
      	
                Margin
      (change to EBITDA)

              	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	
                (i)

              	
                Annualized
      EBITDA (line 2(b)(iv)) plus Gain on sale of marketable securities (Line
      2b(i)D.)

              	 
      	 
      
	 
      	
                Fixed
      Charges Calculation:

              	 
      	 
      
	 
      	 
      	
                (1)

              	
                Consolidated
      interest expense

              	 
      	 
      
	 
      	 
      	
                (2)

              	
                Capitalized
      interest expense (includes 28.2% of Fund II Cap. Int.)

              	 
      	 
      
	 
      	 
      	
                (3)

              	
                Preferred
      stock dividends (preferred perpetual plus series F &
G)

              	 
      	 
      
	 
      	 
      	
                (4)

              	
                Schedule
      of principal payments, other than balloon payments (Sch.
1)

              	 
      	 
      
	 
      	 
      	
                (5)

              	
                Capital
      Reserve ($62.50/ unit/qtr)

              	 
      	 
      
	 
      	 
      	
                (6)

              	
                Pro
      rata share of lines (i) through (iv) in joint ventures (Sch.
      7)

              	 
      	 
      
	 
      	
                (ii)

              	
                Quarterly
      fixed charges (sum of (i) through (vi))

              	 
      	 
      
	 
      	 
      	
                (1)

              	
                3Q
      ___

              	 
      	 
      
	 
      	 
      	
                (2)

              	
                2Q
      ___

              	 
      	 
      
	 
      	 
      	
                (3)

              	
                1Q
      ___

              	 
      	 
      
	 
      	 
      	
                (4)

              	
                4Q
      ___

              	 
      	 
      


      

      


      
        
          
             


          

          
            D-8

            
              

            

          

          
             


          

        

      

       

      
        	
                Annex
      A-4

              
	
                (d)

              	
                Unsecured
      Debt to Unencumbered Asset Pool Value (Section
6.10)(a))

              
	 
      	 
      	
                Not
      to exceed 60%

              
	 
      	 
      	
                Actual
      (ratio of Line 4(a) plus Line 4(b) to Line 4(c))

              
	 
      	 
      	
                Margin

              
	 
      	 
      	 
      
	 
      	
                (i)

              	
                Unsecured
      Debt (Sch. 2)

              
	 
      	
                (ii)

              	
                Guarantees

              
	 
      	
                (iii)

              	
                Unencumbered
      Asset Pool Value (Sch. 2)

              


      

      


      
        
          
             


          

          
            D-9

            
              

            

          

          
             


          

        

      

       

      
        	
                Annex
      A-5

              
	
                (e)

              	
                Secured
      Recourse Debt to Gross Asset Value (Section 6.10(c))

              	 
      
	 
      	 
      	
                Not
      to exceed

              	
                10%

              
	 
      	 
      	
                Actual
      (Ratio of Line 5(a) to Line 5(b))

              	 
      
	 
      	 
      	
                Margin

              	 
      
	 
      	 
      	 
      	 
      
	 
      	
                (i)

              	
                Secured
      Recourse Debt (Sch. 10)

              	 
      
	 
      	
                (ii)

              	
                Gross
      Asset Value (Annex A-2)

              	 
      


      

      


      
        
          
             


          

          
            D-10

            
              

            

          

          
             


          

        

      

       

      
        	
                Annex
      A-6

              
	
                (f)

              	
                Unencumbered
      Development Property to Unencumbered Asset Pool Value (Section
      4.1(a)(ii)(5)

              	 
      
	 
      	 
      	
                Not
      to exceed

              	
                25%*

              
	 
      	 
      	
                Actual
      (ratio of Line 6(a) to Line 6(b))

              	 
      
	 
      	 
      	
                Margin

              	 
      
	 
      	 
      	 
      	 
      
	 
      	 
      	
                *Not
      to exceed 20% at such time that Essex Property Trust, Inc. has less than a
      BBB- or Baa3 (as applicable) rating from S&P or
Moody’s

              	 
      
	 
      	 
      	 
      	 
      
	 
      	
                (i)

              	
                Unencumbered
      Development Property Value (Sch. 2)

              	 
      
	 
      	
                (ii)

              	
                Unencumbered
      Asset Pool Value (Sch. 2)

              	 
      


      

      


      
        
          
             


          

          
            D-11

            
              

            

          

          
             


          

        

      

       

      
        	
                Annex
      A-7

              
	
                (g)

              	
                Maximum
      Quarterly Dividends (Section 6.13)

              	 
      	 
      
	 
      	 
      	
                Not
      to exceed 95% of Funds From Operations (95% of Line 7(a))

              	 
      	 
      
	 
      	 
      	
                Actual
      (Line 7(b))

              	 
      	 
      
	 
      	 
      	
                (Under)/Over

              	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
                Actual
      FFO (trailing 4 qtrs-specify dates)

              	 
      	 
      
	 
      	 
      	
                3Q___

              	 
      	 
      
	 
      	 
      	
                4Q___

              	 
      	 
      
	 
      	 
      	
                1Q___

              	 
      	 
      
	 
      	 
      	
                2Q___

              	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
                (i)

              	
                Total
      Funds from Operations for 4 qtrs

              	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	
                3Q__

              	 
      	 
      
	 
      	 
      	
                4Q__

              	 
      	 
      
	 
      	 
      	
                1Q__

              	 
      	 
      
	 
      	 
      	
                2Q__

              	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
                (ii)

              	
                Total
      Distributions for 4 qtrs

              	 
      	 
      


      

      


      


      
        
          
             


          

          
            D-12

            
              

            

          

          
             


          

        

      

       

      
        	
                Annex
      A-8

              
	
                (h)

              	
                Development;
      Type of Business (% of adjusted GAV) (Section 6.6)

              	 
      
	 
      	 
      	 
      	 
      
	 
      	 
      	
                Total
      actual

              	 
      
	 
      	 
      	
                Not
      to exceed 35%

              	 
      
	 
      	 
      	
                (Under)/Over

              	 
      
	 
      	 
      	 
      	 
      
	 
      	
                (i)

              	
                Entitled
      and Unentitled Land (Sch.__)  -- Not to exceed 10% of Gross
      Asset Value

              	 
      
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	
                (ii)

              	
                Total
      actual Development (Sch. 6)  -- Not to exceed 25% of Gross Asset
      Value

              	 
      
	 
      	 
      	 
      	 
      
	 
      	
                (iii)

              	
                Joint
      Venture Investments (Sch. 9) --

              	 
      
	 
      	 
      	
                [Not
      to exceed 20% of Gross Asset Value (20% of line
    2(b)(viii))]

              	 
      
	 
      	 
      	 
      	 
      
	 
      	
                (iv)

              	
                Acquisition
      down REITs Capital Interests (Sch. 8)

              	 
      
	 
      	 
      	 
      	 
      
	 
      	
                (v)

              	
                Real
      Estate Assets (other than multi-family residential properties) or
      Investments in Real Estate Companies (Sch. 11)

              	 
      
	 	 	 	 


      

      


      
        
          
             


          

          
            D-13

            
              

            

          

          
             


          

        

      

      


      Essex
Portfolio L.P. – Schedule I

      Schedule
of Debt Maturities

      _____,
20___

      


      
        	
                Loan

              	
                Security

              	
                Pay Rate

              	
                Maturity

              	
                Current Loan Amount

              	
                Prin Amort 2Q__

              	
                Prin Amort 20__

              	
                Prin Amort 20__

              	
                Prin Amort 20__

              	
                Prin Amort 20__

              	
                Prin Amort Thereafter

              	
                Total

              
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      


      

      


      
        
          
             


          

          
            D-14

            
              

            

          

          
             


          

        

      

      


      Essex
Portfolio L.P. – Schedule 2

      Unencumbered
Asset Pool

      ______,
20__

      


      
        	 
      	
                Units

              	 
      	
                Reserves
      250

              	
                Adjust
      NOI

              	
                CAP

              	
                Current
      Value

              	
                60%
      of Cap Value

              	
                Line
      Availability

              	
                Property
      not included if % >30%

                 

                Current
      Vacancy

              
	
                Q3__

              	
                Q4__

              	
                Q1__

              	
                Q2__

              	
                Total
      or Annualized

              
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      


      

      


      
        
          
             


          

          
            D-15

            
              

            

          

          
             


          

        

      

      


      Essex
Portfolio L.P. – Schedule 3

      Property
Acquisitions

      _______,
20___

      


      
        	 
      	 
      	 
      	 
      	 	
                Pro-Rata

              	 	 
      	 
      	 
      	 
      	
                Lender

              	 
      	 
      
	
                Classification

              	
                Size

                Units/Acres

              	
                Location

              	
                Percent

                Ownership

              	
                JV

                Partner

              	
                Cost

              	 	
                Quarter NOI

              	 	
                Trailing 12 Month NOI

              	
                Cap Rate

              	
                Occupancy

              	
                Closing Date

              	
                Financing Source

              	
                $

                Debt

              	
                Recourse

              
	 
      	 
      	 
      	 
      	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	
                2Q__
      Unentitled Land

              	 
      	 
      	 
      	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	
                
                  0

                

              	 	
                
                  0

                

              	 	
                
                  0

                

              	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	
                2Q__
      Undeveloped Land

              	 
      	 
      	 
      	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	
                
                  0

                

              	 	
                
                  0

                

              	 	
                
                  0

                

              	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	
                2Q__
      Single Assets

              	 
      	 
      	 
      	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	
                
                  0

                

              	 	
                
                  0

                

              	 	
                
                  0

                

              	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	
                2Q__
      Fund II

              	 
      	 
      	 
      	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	
                
                  0

                

              	 	
                
                  0

                

              	 	
                
                  0

                

              	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	
                Total
      Acquisitions (current quarter only)

              	
                0

              	 
      	
                0

              	 	
                0

              	 	
                0

              	 
      	 
      	 
      	 
      	 
      	 
      


      

      


      
        
          
             


          

          
            D-16

            
              

            

          

          
             


          

        

      

      


      Essex
Portfolio L.P. – Schedule 4

      Joint
Venture-Minority Interest (unconsolidated)

      ________,
20___

      


      


      
        	 
      	 
      	 
      	 
      	 
      	 
      	
                NOI

              	
                %NOI

              	 
      	 
      	 
      	 
      	 
      	 
      
	
                
                  Property

                

              	
                
                  Units

                

              	
                
                  Location

                

              	
                
                  Percent

                  Ownership

                

              	
                
                  JV

                  Partner

                

              	
                
                  Cost

                

              	
                3Q__

              	
                4Q___

              	
                1Q___

              	
                2Q__

              	
                3Q__

              	
                4Q__

              	
                1Q__

              	
                2Q__

              	
                
                  Occupancy

                

              	
                
                  Closing

                  Date

                

              	
                
                  Financing

                  Source

                

              	
                
                  Property

                  Liabilities

                

              	
                
                  Pro-Rata
      Liabilities

                

              	
                
                  Recourse

                

              
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 


      

      


      
        
          
             


          

          
            D-17

            
              

            

          

          
             


          

        

      

      


      Essex
Portfolio L.P. – Schedule 5

      Property
Dispositions

      _____,
20___

      


      
        	 
      	
                Property

              	
                
                  Units

                

              	
                
                  Location

                

              	
                
                  Percent
      Ownership

                

              	
                
                  Quarter
      NOI

                

              	 	
                
                  Sale

                  Price

                

              	 	
                
                  Net

                  Proceeds

                

              	
                
                  Cap

                  Rate

                

              	
                
                  Closing

                  Date

                

              
	 
      	 
      	 
      	 
      	 
      	 
      	 	 
      	 	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 	 
      	 	 
      	 
      	 
      
	
                Quarter
      Dispositions

              	 
      	 
      	 
      	 
      	 
      	 	 
      	 	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 	 
      	 	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 	 
      	 	 
      	 
      	 
      
	
                TTM
      Dispositions (current quarter only)

              	 
      	 
      	 
      	 
      	 	 
      	 	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 	 
      	 	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 	 
      	 	 
      	 
      	 
      


      

      


      
        
          
             


          

          
            D-18

            
              

            

          

          
             


          

        

      

      


      Essex
Portfolio L.P. – Schedule 6

      Development
Pipeline

      _______,
20___

      


      
        	
                Classification

              	
                Amount

              	 	
                Units

              	 	
                Retail

                Sq.
      Ft.

              	
                Location

              	
                Percent

                Ownership

              	
                JV
      Partner

              	
                Total
      Projected Cost

              	 	
                Essex
      Max. Liability

              	 	
                Essex

                Max.

                Commitment

              	
                Percentage
      Complete

              	
                Estimated
      Completion

              	
                Financing

                Source

              	
                Loan

                Commitment

              	
                Essex

                Recourse

              
	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 
      
	
                Undeveloped
      Land-Equity Fund

              	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 
      
	
                Unidentified
      Land

              	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 
      
	
                Single
      Assets

              	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 
      
	
                Joint
      Venture Development

              	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 
      
	
                For-Sale
      Projects (TRS)

              	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 
      
	
                Joint
      Venture Pre Development

              	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 
      
	
                Total
      Development

              	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 
      
	
                Consolidated
      (less Fund)

              	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 
      
	
                Prorata
      Consolidated JV Assets to decrease

              	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 	 
      	 	 
      	 
      	 
      	 
      	 
      	 
      


      

      


      
        
          
             


          

          
            D-19

            
              

            

          

          
             


          

        

      

       

      
        	
                Classification

              	
                Amount

              	
                Units

              	
                Retail

                Sq.
      Ft.

              	
                Location

              	
                Percent

                Ownership

              	
                JV
      Partner

              	
                Total
      Projected Cost

              	
                Essex
      Max. Liability

              	
                Essex

                Max.

                Commitment

              	
                Percentage
      Complete

              	
                Estimated
      Completion

              	
                Financing

                Source

              	
                Loan

                Commitment

              	
                Essex

                Recourse

              
	
                Total
      Development Properties

              	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	
                Prorata
      Fund Assets to Include

              	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      


      

      


      
        
          
             


          

          
            D-20

            
              

            

          

          
             


          

        

      

      


      Essex
Portfolio L.P. – Schedule 7

      Joint
Ventures

      _________,
20__

      


      
        	
                
                  Property
      Name

                

              	
                
                  #
      of units

                

              	
                
                  Capital

                  Interest

                

              	
                
                  Weighted
      #

                  of
      units

                

              	
                
                  Total

                  Property

                  Liabilities
      (1)

                

              	
                
                  Essex
      pro

                  rata
      Liabilities

                

              	
                
                  P&L

                  Ownership
      Interest

                

              	
                
                  Net

                  Operating

                  Income

                

              	
                
                  Total

                  Fixed

                  Charges

                

              	
                
                  Preferred

                  Return

                  L.P.’s

                

              	
                
                  Actual
      Share

                  of
      EBITDA

                

              	
                
                  Prorata

                  Fixed

                  Charges

                

              	
                
                  GAAP
      Book

                  Income
      QTR

                  Ended
      ______

                

              
	
                Fund
      I

              	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	
                Fund
      II

              	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      


      

       

      Notes:

      (1)
Excludes Mark-to-market adjustment for Fun II debt.

      


      
        
          
             


          

          
            D-21

            
              

            

          

          
             


          

        

      

      


      Essex
Portfolio L.P. – Schedule 8

      Down
Reits

      _______,
20___

      


      


      
        	
                
                  Property
      Name

                

              	
                
                  Units

                

              	 	
                
                  Capital

                  Interests

                

              	 	
                
                  Total

                  Property

                  Indebtedness

                

              	 	
                
                  JV
      Percent

                  Ownership

                

              	 	
                
                  Prorata

                  JV

                

              
	 
      	 
      	 	 
      	 	 
      	 	 
      	 	 
      
	 
      	 
      	 	 
      	 	 
      	 	 
      	 	 
      
	 
      	 
      	 	 
      	 	 
      	 	 
      	 	 
      
	 
      	 
      	 	 
      	 	 
      	 	 
      	 	 
      
	 
      	 
      	 	 
      	 	 
      	 	 
      	 	 
      
	 
      	 
      	 	 
      	 	 
      	 	 
      	 	 
      


      

      


      
        
          
             


          

          
            D-22

            
              

            

          

          
             


          

        

      

      


      Essex
Portfolio L.P. – Schedule 9

      Joint
Venture Investments

      _______,
20___

      


      


      
        	
                Joint
      Ventures

              	
                Book
      Value

              
	 
      	 
      
	
                Essex
      Apartment Value Fund II, L.P. (Fund II)

              	 
      
	 
      	 
      	 
      
	 
      	
                Capitalized
      Costs

              	 
      
	 
      	 
      	 
      
	 
      	
                Other

              	 
      
	 
      	 
      	 
      
	 
      	 
      	 
      


      

      


      
        
          
             


          

          
            D-23

            
              

            

          

          
             


          

        

      

      


      Essex
Portfolio L.P. – Schedule 10

      Secured
Recourse Debt

      _______,
20__

      


      


      
        	 
      	
                Subtotal

              	
                0

              
	 
      	
                Secured
      Recourse Debt

              	
                0

              
	 
      	 
      	 
      
	
                %
      of Secured Recourse Debt to Gross Asset Value (Sec.
    6.10(c))

              	 
      
	 
      	 
      	 
      
	 
      	
                May
      not exceed 10% of Gross Asset Value

              	 
      


      

      


      
        
          
             


          

          
            D-24

            
              

            

          

          
             


          

        

      

      


      Essex
Portfolio L.P. – Schedule 11

      Real
Estate Assets

      _______,
20___

      


      


      
        	
                Real
      Estate Assets (other than multifamily properties) or investments in
      companies that own or develop real estate (other than multifamily
      properties)

              	 
      
	 
      	 
      
	
                Other
      real estate assets:

              	 
      
	 
      	 
      
	 
      	 
      
	 
      	 
      
	
                Subtotal

              	 
      
	 
      	 
      
	
                Loans
      to other real estate companies:

              	 
      
	 
      	 
      
	 
      	 
      
	
                Subtotal

              	 
      
	 
      	 
      
	
                Total

              	 
      


      

      


      
        
          
             


          

          
            D-25

            
              

            

          

          
             


          

        

      

      


      EXHIBIT
E

      


      FORM
OF ASSIGNMENT AND ASSUMPTION

      


      THIS
ASSIGNMENT AND ASSUMPTION (the “Assignment and
Assumption”) is dated as of the Effective Date set forth below and is
entered into by and between [Insert name of Assignor] (the “Assignor”) and
[Insert name of Assignee] (the “Assignee”),
Capitalized terms used but not defined herein shall have the meanings given to
them in the Credit Agreement identified below (as amended, the “Credit Agreement”),
receipt of a copy of which is hereby acknowledged by the
Assignee.  The Standard Terms and Conditions set forth in Annex 1 attached
hereto are hereby agreed to and incorporated herein by reference and made a part
of this Assignment and Assumption as if set forth herein in full.

      


      For an
agreed consideration, the Assignor hereby irrevocably sells and assigns to the
Assignee, and the Assignee hereby irrevocably purchases and assumes from the
Assignor, subject to and in accordance with the Standard Terms and Conditions
and the Credit Agreement, as of the Effective Date inserted by the
Administrative Agent as contemplated below, (i) all of the Assignor’s rights and
obligations in its capacity as a Lender under the Credit Agreement and any other
documents or instruments delivered pursuant thereto to the extent related to the
amount and percentage interest identified below of all of such outstanding
rights and obligations of the Assignor under the respective facilities
identified below (including, without limitation, Swing Loans, Letters of Credit,
the Guaranty and each Payment Guaranty included in such facilities) and (ii) to
the extent permitted to be assigned under applicable law, all claims, suits,
causes of action and any other right of the Assignor (in its capacity as a
Lender) against any Person, whether known or unknown, arising under or in
connection with the Credit Agreement, any other documents or instruments
delivered pursuant thereto or the loan transactions governed thereby or in any
way based on or related to any of the foregoing, including, but not limited to,
contract claims, tort claims, malpractice claims, statutory claims and all other
claims at law or in equity related to the rights and obligations sold and
assigned pursuant to clause (i) above (the rights and obligations sold and
assigned pursuant to clauses (i) and (ii) above being referred to herein
collectively as, the “Assigned Interest”).  Such sale and assignment
is without recourse to the Assignor and, except as expressly provided in this
Assignment and Assumption, without representation or warranty by the
Assignor.

      


      
        	
                 
      

              	
                1.

              	
                Assignor:

              	
                _____________________

              


      

      


      
        	
                 
      

              	
                2.

              	
                Assignee:

              	
                _____________________

              


      

      [and is
an Affiliate/Approved Fund of [identify Lender] ]

      


      
        	
                 
      

              	
                3.

              	
                Borrowers):

              	
                _____________________

              


      

      


      
        	
                 
      

              	
                4.

              	
                Administrative
      Agent:  PNC Bank, National Association, as the administrative
      agent under the Credit Agreement

              


      

      


      
        	
                 
      

              	
                5.

              	
                Credit
      Agreement:  Revolving Credit Agreement, dated as of December 18,
      2009, among Essex Portfolio, L.P., the several financial institutions from
      time to time party thereto (each a “Lender” and
      collectively, the “Lenders”), and
      PNC Bank, National Association, individually as a Lender and as
      administrative agent for the Lenders (in such capacity, the “Administrative
      Agent”) and as Swing Line Lender and as L/C
  Issuer.

              


      

      


      
        
          
             


          

          
            E-1

            
              

            

          

          
             


          

        

      

      


      
        	
                 
      

              	
                6.

              	
                Assigned
      Interest:

              	
                _____________________

              


      

      


      
        	
                Facility
      Assigned

              	
                Aggregate
      Amount of Commitment/Loans for all Lender1

              	
                Amount
      of Commitment/Loans Assigned1

              	
                Percentage
      Assigned of Commitment/Loans2

              	
                CUSIP
      Number

              
	 
      	
                $

              	
                $

              	
                ___________%

              	 
      
	 
      	
                $

              	
                $

              	
                ___________%

              	 
      
	 
      	
                $

              	
                $

              	
                ___________%

              	 
      


      

      


      
        	
                 
      

              	
                [7.

              	
                Trade
      Date:__________]3

              


      

      


      Effective
Date: ______________, 20__ [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH
SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER
THEREFOR.]

      


      The terms
set forth in this Assignment and Assumption are hereby agreed to:

      


      
        	 
      	
                ASSIGNOR

              	 
      
	 
      	 
      	 
      	 
      
	 
      	
                [NAME
      OF ASSIGNOR]

              	 
      
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	
                By

              	 
      	 
      
	 
      	
                Title:

              	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	
                ASSIGNEE

              	 
      
	 
      	 
      	 
      	 
      
	 
      	
                [NAME
      OF ASSIGNEE]

              	 
      
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	
                By

              	 
      	 
      
	 
      	
                Title:

              	 
      	 
      


      

      
________________________________

       

      
        
          	
                  1

                	
                  Amount
      to be adjusted by the counterparties to take into account any payments or
      prepayments made between the Trade Date and the Effective
      Date.

                


        

        
          	
                  2

                	
                  Set
      forth, to at least 9 decimals, as a percentage of the Commitment Loans of
      all Lenders thereunder.

                


        

        
          	
                  3

                	
                  To
      be completed if the Assignor and the Assignee intend that the minimum
      assignment amount is to be determined as of the Trade
  Date

                


        

      

    

    
       

      
        
          
             


          

          
            E-2

            
              

            

          

          
             


          

        

      

       

      
        	 
      	
                Consented
      to and Accepted:

              	 
      
	 
      	 
      	 
      	 
      
	 
      	
                PNC
      BANK, NATIONAL ASSOCIATION,

              	 
      
	 
      	
                as
      Administrative Agent

              	 
      
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	
                By:

              	 
      	 
      
	 
      	
                Name:

              	 
      	 
      
	 
      	
                Title:

              	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	
                PNC
      BANK, NATIONAL ASSOCIATION,

              	 
      
	 
      	
                as
      L/C Issuer and Swing Line Lender

              	 
      
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	
                By:

              	 
      	 
      
	 
      	
                Name:

              	 
      	 
      
	 
      	
                Title:

              	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	
                [Consented
      to:]4

              	 
      
	 
      	 
      	 
      	 
      
	 
      	
                ESSEX
      PORTFOLIO, L.P.,

              	 
      
	 
      	
                a
      California limited partnership

              	 
      
	 
      	 
      	 
      	 
      
	 
      	
                By:

              	
                ESSEX
      PROPERTY TRUST, INC.,

              	 
      
	 
      	 
      	
                a
      Maryland corporation

              	 
      
	 
      	 
      	
                its
      General Partner

              	 
      
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	
                By:

              	 
      	 
      
	 
      	
                Name:

              	 
      	 
      
	 
      	
                Title:

              	 
      	 
      


      

      
________________________________

       

      

        	
                4

              	
                To
      be added only if the consent of Borrower is required by the terms of the
      Credit Agreement.

              


      

      


      
        
          
             


          

          
            E-3

            
              

            

          

          
             


          

        

      

      


      ANNEX
I TO ASSIGNMENT AND ASSUMPTION

      


      ESSEX
PORTFOLIO, L.P.

      REVOLVING
CREDIT AGREEMENT

      DATED AS
OF DECEMBER 18, 2009

      


      STANDARD
TERMS AND CONDITIONS FOR

      ASSIGNMENT
AND ASSUMPTION

      


      1.        
     Representations and
Warranties.

      


      1.1           Assignor.  The
Assignor (a) represents and warrants that (i) it is the legal and beneficial
owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of
any lien, encumbrance or other adverse claim, and (iii) it has full power and
authority, and has taken all action necessary, to execute and deliver this
Assignment and Assumption and to consummate the transactions contemplated
hereby; and (b) assumes no responsibility with respect to (i) any statements,
warranties or representations made in or in connection with the Credit Agreement
or any other Loan Document, (ii) the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Loan Documents or any
collateral thereunder, (iii) the financial condition of Borrower, any of its
subsidiaries or affiliates or any other Person obligated in respect of any Loan
Document or (iv) the performance or observance by Borrower, any of its
subsidiaries or affiliates or any other Person of any of their respective
obligations under any Loan Document.

      


      1.2.           Assignee.  The
Assignee (a) represents and warrants that (i) it has full power and authority,
and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby and to become
a Lender under the Credit Agreement, (ii) it meets all requirements of an
Eligible Assignee under the Credit Agreement (subject to receipt of such
consents as may be required under the Credit Agreement), (iii) from and after
the Effective Date, it shall be bound by the provisions of the Credit Agreement
as a Lender thereunder and, to the extent of the Assigned Interest, shall have
the obligations of a Lender thereunder, (iv) it has received a copy of the
Credit Agreement, together with copies of the most recent financial statements
delivered pursuant to Section 6.3 thereof, as applicable, and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Assumption and to
purchase the Assigned Interest on the basis of which it has made such analysis
and decision independently and without reliance on the Administrative Agent or
any other Lender, and (v) if it is a foreign Lender, attached to the Assignment
and Assumption is any documentation required to be delivered by it pursuant to
the terms of the Credit Agreement, duly completed and executed by the Assignee;
and (b) agrees that (i) it will, independently and without reliance on the
Administrative Agent, the Assignor or any other Lender, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Loan
Documents, and (ii) it will perform in accordance with their terms all of the
obligations which by the terms of the Loan Documents are required to be
performed by it as a Lender.

      


      
        
          
             


          

          
            EA-1

            
              

            

          

          
             


          

        

      

      


      2..        
    Payments.  From
and after the Effective Date, the Administrative Agent shall make all payments
in respect of the Assigned Interest (including payments of principal, interest,
fees and other amounts) to the Assignor for amounts which have accrued to, but
excluding, the Effective Date and to the Assignee for amounts which have accrued
from and after the Effective Date.

      


      3.          
   General
Provisions.  This Assignment and Assumption shall be binding
upon, and inure to the benefit of, the parties hereto and their respective
successors and assigns.  This Assignment and Assumption may be
executed in any number of counterparts, which together shall constitute one
instrument.  Delivery of an executed counterpart of a signature page
of this Assignment and Assumption by telecopy shall be effective as delivery of
a manually executed counterpart of this Assignment and
Assumption.  THIS ASSIGNMENT AND ASSUMPTION AGREEMENT IS TO BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF
CALIFORNIA (AS PERMITTED BY SECTION 1646.5 OF THE CALIFORNIA CIVIL CODE OR ANY
SIMILAR SUCCESSOR PROVISION), WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW RULE
THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE
INTERNAL LAWS OF THE STATE OF CALIFORNIA TO THE RIGHTS AND DUTIES OF THE
PARTIES.

      


      
        
          
             


          

          
            EA-2

            
              

            

          

          
             


          

        

      

      


      EXHIBIT
F-l

      


      FORM
OF PAYMENT GUARANTY (GUARANTOR)

      


      [See
Attached]

      


      
        
          
             


          

          
            F-1

            
              

            

          

          
             


          

        

      

      


      PAYMENT
GUARANTY

      (Guarantor - Revolving Loans
and Letters of Credit)

      


      THIS
PAYMENT GUARANTY (this “Guaranty”) is dated
as of December 18, 2009, and is made by ESSEX PROPERTY TRUST, INC., a Maryland
corporation (“Guarantor”), in favor
of PNC BANK, NATIONAL ASSOCIATION, as administrative agent (in such capacity,
“Administrative
Agent”) for the lenders (each, a “Lender” and
collectively, “Lenders”) from time
to time party to the Agreement (as hereinafter defined) and as Swing Line Lender
and L/C Issuer.  The Administrative Agent, the Lenders, the Swing Line
Lender and the L/C Issuer are sometimes hereinafter referred to collectively as
the “Guaranteed
Parties” and each, individually, as a “Guaranteed
Party”.

      


      Factual
Background

      


      A.       
    Essex Portfolio, L.P., a California limited partnership
(“Borrower”),
Administrative Agent and the lenders party thereto entered into a Revolving
Credit Agreement dated as of December 18, 2009 (as amended from time to time,
the “Agreement”), pursuant
to which such lenders agreed to make available to Borrower an unsecured
revolving line of credit and letter of credit facility (the “Credit Line”) on the
terms and subject to the conditions set forth therein.

      


      B.      
      Guarantor is executing this Guaranty to induce
Lenders to extend the Credit Line and enter into the Agreement.

      


      C.       
     This Guaranty is one of several Loan Documents, as
defined and designated in the Agreement.  The Loan Documents also
include the Agreement and certain other specified instruments and
agreements.  Capitalized terms used in this Guaranty shall have the
meanings set forth in Section 33 or in the text of this Guaranty and, if not
defined in Section 33 or otherwise herein, shall have the meanings given to them
in the Agreement.

      


      Guaranty

      


      Section
1.           
   Guaranty of Credit
Line.  Guarantor hereby unconditionally and irrevocably
guaranties to the Guaranteed Parties, and their respective successors,
transferees and assigns, the full and prompt payment of the Credit Line when due
(whether at stated maturity, by required prepayment, declaration, acceleration,
demand or otherwise) and performance of the indebtedness, liabilities and other
obligations of Borrower to the Guaranteed Parties under or in connection with
the Agreement, the Notes and the other Loan Documents, and unconditionally and
irrevocably agrees to pay to Administrative Agent, for its own account and for
the account of the other Guaranteed Parties, upon the occurrence of an Event of
Default under and as defined in the Agreement, the full amount of the Credit
Line.  This is a guaranty of payment, not of collection.  If
Borrower defaults in the payment when due of all or any part of the Credit Line,
Guarantor shall in lawful money of the United States pay to Administrative Agent
or order, on demand, all sums due and owing on the Credit Line, including all
interest, charges, fees and other sums, costs and expenses.

      


      Section
2.          
   Credit
Line.  In this Guaranty, the term “Credit Line” is broadly
defined to mean and include all primary, secondary, direct, indirect, fixed and
contingent obligations of Borrower to pay principal, interest, prepayment
charges, late charges, loan fees and any other fees, charges, sums, costs and
expenses which may be owing at any time under the Loan Documents, as any or all
of them may from time to time be modified, amended, extended or renewed,
including all unpaid principal of the Loans, all amounts owing in respect of the
L/C Obligations, all interest accrued thereon, all indemnification obligations
of Borrower under or in connection with the Agreement, the Notes and the other
Loan Documents, and all other amounts payable by Borrower to the Guaranteed
Parties thereunder or in connection therewith, including all such amounts that
may be or hereafter become unenforceable or be or hereafter become an allowed or
disallowed claim under any Insolvency Proceeding, and including interest that
accrues after the commencement by or against Borrower or any Affiliate thereof
under any Insolvency Proceeding naming such Person as the debtor in such
proceeding.  For purposes of this Guaranty, the Credit Line includes
all such obligations which may arise in connection with any transactions between
Borrower and Lenders which may afford interest rate protection to all or part of
the Credit Line, if any, and all other indebtedness, liabilities and obligations
to be paid or performed by Guarantor in connection with this Guaranty (including
any and all amounts due under Section 22).

      


      
        
          
             


          

          
            F-1-1

            
              

            

          

          
             


          

        

      

      


      Section
3.           
  Rights of
Administrative Agent and the other Guaranteed
Parties.  Guarantor authorizes Administrative Agent and/or the
other Guaranteed Parties to perform any or all of the following acts at any time
in its sole discretion, all without notice to Guarantor and without affecting
Guarantor’s obligations under this Guaranty:

      


      (a)         
  alter any terms of the Credit Line or any part of it, including
renewing, compromising, extending or accelerating, or otherwise changing the
time for payment of, or increasing or decreasing the rate of interest on, the
Credit Line or any part of it;

      


      (b)        
   take and hold security for the Credit Line or this Guaranty,
accept additional or substituted security for either, and subordinate, exchange,
enforce, waive, release, compromise, fail to perfect and sell or otherwise
dispose of any such security;

      


      (c)       
    direct the order and manner of any sale of all or any
part of any security now or later to be held for the Credit Line or this
Guaranty, and Administrative Agent or any other Guaranteed Party may also bid at
any such sale;

      


      (d)       
    apply any payments or recoveries from Borrower,
Guarantor or any other source, and any proceeds of any security, to Borrower’s
obligations under the Loan Documents in such manner, order and priority as
Administrative Agent may elect whether or not those obligations are guarantied
by this Guaranty or secured at the time of the application;

      


      (e)        
   release Borrower of its liability for the Credit Line or any
part of it;

      


      (f)           
 substitute, add or release any one or more guarantors or endorsers;
or

      


      (g)           
in addition to the Credit Line, extend other credit to Borrower, and may take
and hold security for the credit so extended, all without affecting Guarantor’s
liability under this Guaranty.

      


      
        
          
             


          

          
            F-1-2

            
              

            

          

          
             


          

        

      

      


      Section
4.          
    Guaranty to be
Absolute.  Guarantor expressly agrees that until the Credit
Line is paid and performed in full and each and every term, covenant and
condition of this Guaranty is fully performed, Guarantor shall not be released
by or because of:

      


      (a)       
    any act or event that might otherwise discharge, reduce,
limit or modify Guarantor’s obligations under this Guaranty;

      


      (b)        
   any waiver, extension, modification, forbearance, delay or
other act or omission of Administrative Agent or any other Guaranteed Party, or
its failure to proceed promptly or otherwise as against Borrower, Guarantor or
any security;

      


      (c)          
 any action, omission or circumstance which might increase the likelihood
that Guarantor may be called upon to perform under this Guaranty or which might
affect the rights or remedies of Guarantor as against Borrower or any other
Person;

      


      (d)           
any dealings occurring at any time between Borrower, Administrative Agent or any
other Guaranteed Party, whether relating to the Credit Line or otherwise;
or

      


      (e)           
any action of Administrative Agent or any other Guaranteed Party described in
Section 3.

      


      Guarantor
hereby acknowledges that absent this Section 4, Guarantor might have a defense
to the enforcement of this Guaranty as a result of one or more of the foregoing
acts, omissions, agreements, waivers or matters.  Guarantor hereby
expressly waives and surrenders any defense to any liability under this Guaranty
based upon any of such acts, omissions, agreements, waivers or
matters.

      


      Section
5.             
Liability of
Guarantor.  Guarantor’s obligations under this Guaranty are and
shall be independent, absolute, unconditional and irrevocable, and shall not be
affected by any circumstance which might constitute a discharge of a surety or
guarantor, other than the indefeasible payment and performance in full of the
Credit Line.  Guarantor’s liability with respect to the Credit Line
shall remain in full force and effect without regard to, and shall not be
impaired or affected by, any Insolvency Proceeding with respect to Borrower,
Guarantor or any other Person, or any assignment or other transfer of any
Guaranteed Party’s interests in and rights under this Guaranty or the other Loan
Documents, or any claim, defense, counterclaim or setoff (other than that of
prior performance), that Borrower, Guarantor or any other Person may have or
assert; or any amendment, modification, renewal, extension, cancellation or
surrender of any Loan Document or any collateral that may at any time secure the
Credit Line, or any Guaranteed Party’s exchange, release, or waiver of any other
guaranty of all or any part of the Credit Line or any other indebtedness,
obligations or liabilities of Borrower or any other guarantor to any Guaranteed
Party under the Credit Line.

      


      Section
6.              
Guarantor’s
Waivers.  Guarantor waives:

      


      (a)           
all statutes of limitations as a defense to any action or proceeding brought
against Guarantor by Administrative Agent, to the fullest extent permitted by
law;

      


      
        
          
             


          

          
            F-1-3

            
              

            

          

          
             


          

        

      

      


      (b)   
        any right it may have to require
Administrative Agent or any other Guaranteed Party to proceed against Borrower,
proceed against or exhaust any security held from Borrower, or pursue any other
remedy in Administrative Agent’s or any other Guaranteed Party’s power to
pursue;

      


      (c)     
      any defense based on any claim that
Guarantor’s obligations exceed or are more burdensome than those of
Borrower;

      


      (d)      
     any defense based on: (i) any legal disability of
Borrower, (ii) any release, discharge, modification, impairment or limitation of
the liability of Borrower to Administrative Agent or any other Guaranteed Party
from any cause, whether consented to by Administrative Agent or any other
Guaranteed Party or arising by operation of law or from any Insolvency
Proceeding, and (iii) any rejection or disaffirmance of the Credit Line, or any
part of it, or any security held for it, in any such Insolvency
Proceeding;

      


      (e)        
   any defense based on any action taken or omitted by
Administrative Agent or any other Guaranteed Party in any Insolvency Proceeding
involving Borrower, including any election to have Administrative Agent’s or any
other Guaranteed Party’s claim allowed as being secured, partially secured or
unsecured, any extension of credit by Lenders to Borrower in any Insolvency
Proceeding, and the taking and holding by Administrative Agent or the other
Guaranteed Parties of any security for any such extension of
credit;

      


      (f)          
 all presentments, demands for performance, notices of nonperformance,
protests, notices of protest, notices of dishonor, notices of acceptance of this
Guaranty and of the existence, creation, or incurring of new or additional
indebtedness, and demands and notices of every kind except for any demand or
notice by Administrative Agent to Guarantor expressly provided for in Section
1;

      


      (g)           
any defense based on or arising out of any defense that Borrower may have to the
payment or performance of the Credit Line or any part of it; and

      


      (h)           
any defense based on or arising out of any action of Administrative Agent or any
Lender described in Section 3 or Section 4.

      


      Section
7.              
 Waivers of
Subrogation and Other Rights and Defenses.

      


      (a)           
Upon a default by Borrower, Administrative Agent and/or any other Guaranteed
Party in their sole discretion, without prior notice to or consent of Guarantor,
may elect to: (i) foreclose either judicially or nonjudicially against any real
or personal property security they may hold for the Credit Line, (ii) accept a
transfer of any such security in lieu of foreclosure, (iii) compromise or adjust
the Credit Line or any part of it or make any other accommodation with Borrower
or Guarantor, or (iv) exercise any other remedy against Borrower or any
security.  No such action by Administrative Agent and/or any other
Guaranteed Party shall release or limit the liability of Guarantor, who shall
remain liable under this Guaranty after the action, even if the effect of the
action is to deprive Guarantor of any subrogation rights, rights of indemnity,
or other rights to collect reimbursement from Borrower for any sums paid to
Administrative Agent for its own account or for the account of any other
Guaranteed Party, whether contractual or arising by operation of law or
otherwise.  Guarantor expressly agrees that under no circumstances
shall it be deemed to have any right, title, interest or claim in or to any real
or personal property to be held by Administrative Agent or any other Guaranteed
Party or any third party after any foreclosure or transfer in lieu of
foreclosure of any security for the Credit Line.

      


      
        
          
             


          

          
            F-1-4

            
              

            

          

          
             


          

        

      

      


      (b)    
       Regardless of whether Guarantor may
have made any payments to Administrative Agent for its own account or for the
account of any other Guaranteed Party, Guarantor waives, until all indebtedness,
liabilities and other obligations of Borrower to the Guaranteed Parties under or
in connection with the Agreement, the Notes and the other Loan Documents have
been indefeasibly paid in full: (i) all rights of subrogation, all rights of
indemnity, and any other rights to collect reimbursement from Borrower for any
sums paid to Administrative Agent or any other Guaranteed Party, whether
contractual or arising by operation of law (including the United States
Bankruptcy Code or any successor or similar statute) or otherwise, (ii) all
rights to participate in any security now or later to be held by Administrative
Agent or the other Guaranteed Parties for the Credit Line, and (iii) all rights
to enforce any remedy that Administrative Agent or any other Guaranteed Party
may have against Borrower.

      


      (c)      
     Guarantor waives Guarantor’s rights of subrogation
and reimbursement and any other rights and defenses available to Guarantor by
reason of Sections 2787 to 2855, inclusive, of the California Civil Code
including, without limitation, any defenses Guarantor may have to the Guaranty
obligation by reason of an election of remedies by Administrative Agent or any
other Guaranteed Party, and any and all benefits that otherwise might be
available to such Guarantor under California Civil Code §§1432, 2809, 2810,
2815, 2819, 2839, 2845, 2848, 2849, 2850, 2899 and 3433 and California Code of
Civil Procedure §§580a, 580b, 580d and 726.  Accordingly, Guarantor
waives all rights and defenses that Guarantor may have because Borrower’s debt
may at any time be secured by real property.  This means, among other
things: (A) the Guaranteed Parties may collect from Guarantor without first
foreclosing on any real or personal property collateral that may at any time be
pledged by Borrower; and (B) if the Administrative Agent forecloses on any real
property collateral that may at any time be pledged by Borrower: (1) the amount
of the debt may be reduced only by the price for which such collateral is sold
at the foreclosure sale, even if such collateral is worth more than the sale
price, and (2) the Guaranteed Parties may collect from Guarantor even if the
Administrative Agent, by foreclosing on such real property collateral, has
destroyed any right Guarantor may have to collect from Borrower.  This
is an unconditional and irrevocable waiver of any rights and defenses Guarantor
may have because Borrower’s debt may at any time be secured by real
property.  These rights and defenses include, but are not limited to,
any rights of defenses based upon Section 580a, 580b, 580d or 726 of the
California Code of Civil Procedure.

      


      (d)       
    Guarantor waives all right and defenses arising out of
an election of remedies by Administrative Agent or the other Guaranteed Parties,
even though that election of remedies has destroyed Guarantor’s rights of
subrogation and reimbursement against Borrower.

      


      (e)         
  No provision or waiver in this Guaranty shall be construed as
limiting the generality of any other waiver contained in this
Guaranty.

      


      Section
8.             
Continuing Guaranty;
Reinstatement.  This Guaranty is a continuing guaranty and
agreement of subordination relating to any Guaranteed Obligations, including
Guaranteed Obligations which may exist continuously or which may arise from time
to time under successive transactions, and Guarantor expressly acknowledges that
this Guaranty shall remain in full force and effect notwithstanding that there
may be periods in which no Guaranteed Obligations exist.  This
Guaranty shall continue in effect and be binding upon Guarantor until
termination of the Commitments and payment and performance in full of the
Guaranteed Obligations.  This Guaranty shall continue to be effective
or shall be reinstated and revived, as the case may be, if, for any reason, any
payment of the Guaranteed Obligations by or on behalf of Borrower shall be
rescinded, invalidated, declared to be fraudulent or preferential, set aside,
voided or otherwise required to be repaid to Borrower, its estate, trustee,
receiver or any other Person (including under the Bankruptcy Code or other state
or federal law), or must otherwise be restored by any Guaranteed Party, whether
as a result of Insolvency Proceedings or otherwise.  To the extent any
payment is so rescinded, set aside, voided or otherwise repaid or restored, the
Guaranteed Obligations shall be revived in full force and effect without
reduction or discharge for such payment.

      


      
        
          
             


          

          
            F-1-5

            
              

            

          

          
             


          

        

      

      


      Section
9.        
      Information Regarding
Borrower and the Property.  Before signing this Guaranty,
Guarantor investigated the financial condition and business operations of
Borrower, the present and former condition, uses and ownership of the
Unencumbered Asset Pool, and such other matters as Guarantor deemed appropriate
to assure itself of Borrower’s ability to discharge its obligations under the
Loan Documents.  Guarantor assumes full responsibility for that due
diligence, as well as for keeping informed of all matters which may affect
Borrower’s ability to pay and perform its obligations to Administrative Agent
and the other Guaranteed Parties.  Neither Administrative Agent nor
any Lender has a duty to disclose to Guarantor any information that
Administrative Agent or any Lender may have or receive about Borrower’s
financial condition or business operations, or any other circumstances bearing
on Borrower’s ability to perform.

      


      Section
10.         
   Subordination.  Any
rights of Guarantor, whether now existing or later arising, to receive payment
on account of any indebtedness (including interest) owed to it by Borrower, or
to withdraw capital invested by it in Borrower, or to receive distributions from
Borrower, shall at all times be subordinate as to lien and time of payment and
in all other respects to the full and prior repayment to Administrative Agent
and the other Guaranteed Parties of the Credit Line.  Guarantor shall
not be entitled to enforce or receive payment of any sums hereby subordinated
until the Credit Line has been paid and performed in full and any such sums
received in violation of this Guaranty shall be received by Guarantor in trust
for Administrative Agent and the other Guaranteed Parties.  The
foregoing notwithstanding, Guarantor is not prohibited from receiving (a) such
reasonable management fees or reasonable salary from Borrower as Administrative
Agent may find reasonably acceptable from time to time, (b) distributions from
Borrower in an amount equal to any income taxes imposed on Guarantor which are
attributable to Borrower’s income from any property owned by Borrower, and (c)
distributions or dividends from Borrower from cash flow available for such
distributions or dividends that was earned during the immediately preceding
fiscal year in an amount that does not exceed ninety-five percent (95%) of Funds
From Operations on a rolling four calendar quarter
basis.  Notwithstanding the above, Guarantor may receive distributions
from Borrower to pay common and preferred stock dividends in any calendar
quarter in an amount that exceeds Funds From Operations for such calendar
quarter only to the extent necessary to enable Guarantor to make distributions
necessary to continue to qualify as a REIT as that term is defined in Section
12(b).

      


      
        
          
             


          

          
            F-1-6

            
              

            

          

          
             


          

        

      

      


      Section
11.       
     Guarantor’s Representations
and Warranties.  Guarantor represents and warrants
that:

      


      (a)       
    Financial Statements True
and Correct.  All financial statements and other financial
information furnished or to be furnished to Administrative Agent are or will be
true and correct in all material respects determined according to GAAP unless
otherwise provided for herein and do or will fairly represent the financial
condition of Guarantor (including all contingent liabilities) (for purposes of
this Section 11(a), the term “material respects” means any variance in the
aggregate amount of $10,000,000.00);

      


      (b)        
   Financial Statements
According to GAAP.  All financial statements were or will be
prepared in accordance with GAAP;

      


      (c)          
 No Material
Adverse Change.  There has been no material adverse change in
Guarantor’s financial condition since the dates of the statements most recently
furnished to Administrative Agent;

      


      (d)           
Organization of
Guarantor.  Guarantor is a corporation duly formed, validly
existing and in good standing under the laws of Maryland;

      


      (e)          
 Authorization.  The
execution and compliance with this Guaranty, the Agreement, and the other Loan
Documents to which Guarantor is a party are within Guarantor’s powers, have been
duly authorized, and do not conflict with any of Guarantor’s organizational
documents;

      


      (f)           
Enforceable
Agreement.  This Guaranty is a legal, valid and binding
agreement of Guarantor, enforceable against Guarantor in accordance with its
terms, and any other Loan Document to which Guarantor is a party, when executed
and delivered, will be similarly legal, valid, binding and enforceable, except
to the extent that the enforcement of the rights and remedies of Administrative
Agent or the other Guaranteed Parties may hereafter be subject to bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting generally the
enforcement of creditors’ rights and remedies, and the availability of equitable
remedies may be subject to the discretion of the court before which any
proceeding thereof is brought;

      


      (g)          
 Good
Standing.  In each state in which Guarantor does business, it
is, where required, properly licensed, in good standing and in compliance with
fictitious name statutes;

      


      (h)           
No
Conflicts.  Guarantor, to the best of its knowledge, is not in
violation of, nor do the terms of this Guaranty or any other Loan Document
conflict with, any law (including Environmental Laws), regulation or ordinance,
any order of any court or governmental entity, or any covenant or agreement
affecting Guarantor which would materially and adversely affect Guarantor’s
ability to perform its obligations under this Guaranty or under any other Loan
Document to which Guarantor is a party;

      


      
        
          
             


          

          
            F-1-7

            
              

            

          

          
             


          

        

      

      


      (i)   
         Lawsuits.  There
is no lawsuit, tax claim or other dispute pending or threatened against
Guarantor which, if lost, would materially adversely impair Guarantor’s
financial condition or ability to repay the Credit Line;

      


      (j)     
       Other
Obligations.  Guarantor is not in material default (taking into
account all applicable cure periods, if any) on any material obligation for
borrowed money, any purchase money obligation or any other material lease,
commitment, contract, instrument or obligation;

      


      (k)      
     No Required Third
Party/Governmental Approvals.  No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with any third party
or any Governmental Authority, is necessary or required in connection with the
execution, delivery or performance of this Guaranty or any other Loan Document
to which Guarantor is a party; and

      


      (l)          
  Solvency.  Immediately
prior to and after and giving effect to the incurrence of Guarantor’s
obligations under this Guaranty Guarantor is and will be
Solvent.  “Solvent” shall mean that (i) the fair value of Guarantor’s
assets is greater than the amount of Guarantor’s liabilities as such value is
established and liabilities evaluated for purposes of Section 101(32) of the
Bankruptcy Code and, in the alternative, for purposes of the California Uniform
Fraudulent Transfer Act and any other applicable fraudulent conveyance statute;
(ii) the present fair saleable value of Guarantor’s assets is not less than the
amount that will be required to pay the probable liability of Guarantor on its
debts as they become absolute and matured; (iii) Guarantor is able to realize
upon its assets and pay its debts and other liabilities as they mature in the
normal course of business; (iv) Guarantor does not intend to, and does not
believe that it will, incur debts or liabilities beyond Guarantor’s ability to
pay as such debts and liabilities mature; and (v) Guarantor is not engaged in
business or a transaction, and is not about to engage in business or a
transaction, for which Guarantor’s property would constitute unreasonably small
capital.

      


      Section
12.            
Guarantor promises to keep each of the following covenants:

      


      (a)           
Compliance with
Law.  Guarantor shall comply with all existing and future laws,
regulations, orders, building restrictions and requirements of, and all
agreements with and commitments to, all Governmental Authorities having
jurisdiction over Guarantor or Guarantor’s business.  Notwithstanding
any contrary provision in this Section, Guarantor shall have a right to contest
all existing and future Requirement of Law before complying
therewith.

      


      (b)           
REIT
Status.  Guarantor has elected and shall continue to elect to
be taxed as, and shall conduct its affairs in a manner so as to retain its
status as a real estate investment trust (“REIT”) pursuant to
Sections 856 and 857 of the Internal Revenue Code of 1986, as amended from time
to time (the “Code”).

      


      (c)           
Stock
Listing.  Guarantor shall maintain a listing on the New York
Stock Exchange.

      


      (d)           
Financial and Other
Information.  Guarantor shall keep true and correct financial
books and records, using generally accepted accounting principles consistently
applied, or such other accounting principles as Administrative Agent in its
reasonable judgment may find acceptable from time to time.  Guarantor
shall provide Administrative Agent with the items specified in Sections 6.3(a),
(b), (c), (d), (f), (g), (i), (j) and (k) of the Agreement with respect to
Guarantor, and any other financial or other information concerning Guarantor’s
affairs and property as Administrative Agent may reasonably request, to be
furnished promptly upon such request.

      


      
        
          
             


          

          
            F-1-8

            
              

            

          

          
             


          

        

      

      


      (e)  
         Agreement
Covenants.  Guarantor shall observe, perform and comply with
all covenants expressly applicable to Guarantor set forth in Articles 6 and 10
of the Agreement, which by their terms Borrower is required to cause Guarantor
to observe, perform and comply with, as if such covenants were set forth in full
herein.

      


      Section
13.      
      Negative
Covenants.

      


      (a)      
     Without Required Lender’s prior written consent,
which consent shall not be unreasonably withheld or delayed, Guarantor shall
not:

      


      (i)        
    enter into or invest in any consolidation, merger, pool,
syndicate or other combination unless Guarantor is the surviving entity and
control of Guarantor does not change;

      


      (ii)        
   change the legal structure of Guarantor from a publicly traded
real estate investment trust under the provisions of Sections 856 and 857 of the
Code, or change the legal structure of Guarantor as a so-called up-REIT, or
without 30 days’ prior written notice to Administrative Agent, change
Guarantor’s jurisdiction of formation, place of business or chief executive
office if Guarantor has more than one place of business; or

      


      (iii)           withdraw
as Borrower’s general partner, or allow Guarantor to suffer a change in its
executive management such that Keith Guericke is no longer Chief Executive
Officer and he is not replaced by Michael J. Schall, George M. Marcus is no
longer Chairman of the Board of Directors or Michael J. Schall is no longer
Chief Operating Officer (unless he becomes Chief Executive Officer), unless such
executive management is replaced by parties reasonably acceptable to
Administrative Agent within 180 days.

      


      (b)     
      Guarantor shall not in any
case:

      


      (i)    
        form additional unconsolidated
down-REITs for property acquisitions (an “Acquisition
down-REIT”) unless they comply on an on-going basis with each of the
following conditions:

      


      (A)           such
Acquisition down-REIT is a limited partnership or limited liability company, and
Essex Management Corporation (“EMC”) or any wholly
owned subsidiary of Borrower or Guarantor shall be the sole general partner of
any such partnership or the sole managing member of such limited liability
company;

      


      (B)           Guarantor
and/or Borrower and/or EMC shall have effective management control of each
Acquisition down-REIT and each property owned by such Acquisition down-REIT;
and

      


      
        
          
             


          

          
            F-1-9

            
              

            

          

          
             


          

        

      

      


      (C)           limited
partners or members of such Acquisition down-REIT shall receive only partnership
units or membership interests in the Acquisition down-REIT and/or cash for value
contributed;

      


      (ii)    
       liquidate or dissolve Guarantor’s
business or, as general partner of Borrower, cause or permit Borrower to
liquidate or dissolve Borrower’s business; or

      


      (iii)           dispose
of all or substantially all of Guarantor’s business or Guarantor’s assets or, as
general partner of Borrower, cause or permit Borrower to dispose of all or
substantially all of Borrower’s business or Borrower’s assets.

      


      Section
14.         
   Governing Law; Jurisdiction
and Dispute Resolution.

      


      (i)           
 GOVERNING
LAW. THIS GUARANTY IS TO BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE INTERNAL LAWS OF THE STATE OF CALIFORNIA (AS PERMITTED BY SECTION 1646.5 OF
THE CALIFORNIA CIVIL CODE OR ANY SIMILAR SUCCESSOR PROVISION), WITHOUT GIVING
EFFECT TO ANY CHOICE OF LAW RULE THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF
ANY JURISDICTION OTHER THAN THE INTERNAL LAWS OF THE STATE OF CALIFORNIA TO THE
RIGHTS AND DUTIES OF THE PARTIES.

      


      (ii)    
       SUBMISSION TO
JURISDICTION. GUARANTOR AND, BY ITS ACCEPTANCE OF THIS GUARANTY, THE
ADMINISTRATIVE AGENT, EACH IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF
AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF
CALIFORNIA SITTING IN SAN FRANCISCO COUNTY AND OF THE UNITED STATES DISTRICT
COURT OF THE NORTHERN DISTRICT OF CALIFORNIA, AND ANY APPELLATE COURT FROM ANY
THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY
OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT,
AND GUARANTOR AND EACH GUARANTEED PARTY (BY ITS ACCEPTANCE OF THIS GUARANTY)
IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH CALIFORNIA STATE COURT
OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL
COURT.  GUARANTOR AND EACH GUARANTEED PARTY (BY ITS ACCEPTANCE OF THIS
GUARANTY) AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR
IN ANY OTHER MANNER PROVIDED BY LAW.  NOTHING IN THIS GUARANTY OR IN
ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT ANY GUARANTEED PARTY MAY
OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS GUARANTY OR
ANY OTHER LOAN DOCUMENT AGAINST GUARANTOR OR ITS PROPERTIES IN THE COURTS OF ANY
JURISDICTION WHERE THE GUARANTOR OR ITS PROPERTIES ARE LOCATED.

      


      
        
          
             


          

          
            F-1-10

            
              

            

          

          
             


          

        

      

      


      (iii)           WAIVER OF
VENUE.  GUARANTOR AND, BY ITS ACCEPTANCE OF THIS GUARANTY, THE
ADMINISTRATIVE AGENT, EACH IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF
OR RELATING TO THIS GUARANTY OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO
IN PARAGRAPH (i) OF THIS SECTION.  GUARANTOR AND EACH GUARANTEED PARTY
(BY ITS ACCEPTANCE OF THIS GUARANTY) HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE
MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.

      


      (iv)           SERVICE OF
PROCESS.  GUARANTOR IRREVOCABLY CONSENTS TO SERVICE OF PROCESS
IN THE MANNER PROVIDED FOR NOTICES IN SECTION 20.  NOTHING IN THIS
GUARANTY WILL AFFECT THE RIGHT OF ANY GUARANTEED PARTY TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY APPLICABLE LAW.

      


      (v)         
  WAIVER OF
JURY TRIAL.  GUARANTOR AND EACH OTHER GUARANTEED PARTY (BY ITS
ACCEPTANCE HEREOF) HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS GUARANTY OR ANY OTHER
LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED
ON CONTRACT, TORT OR ANY OTHER THEORY).  GUARANTOR AND EACH GUARANTEED
PARTY (BY ITS ACCEPTANCE HEREOF) (i) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (ii) ACKNOWLEDGES THAT IT HAVE BEEN INDUCED TO ENTER INTO
THIS GUARANTY AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION.

      


      (vi)           Judicial
Reference.  If any action or proceeding by or against any party
hereto in connection with any of the transactions contemplated by this Guaranty
or any other Loan Document is filed in a forum in which predispute waivers of
the right to trial by jury are invalid under applicable law, (a) the court
shall, and is hereby directed to, make a general reference pursuant to
California Code of Civil Procedure Section 638 (or similar applicable law) to a
referee (who shall be a single active or retired judge) to hear and determine
all of the issues in such action or proceeding (whether of fact or of law) and
to report a statement of decision, provided that at the option of any party to
such proceeding, any such issues pertaining to a “provisional remedy” (or
similar term) as defined in California Code of Civil Procedure Section 1281.8
(or similar applicable law) shall be heard and determined by the court, and (b)
the prevailing party, or the non-dismissing party in the event of a voluntary
dismissal by the party instituting the action, shall be entitled to the full
amount of all fees and expenses of any referee appointed in such action or
proceeding.

      


      
        
          
             


          

          
            F-1-11

            
              

            

          

          
             


          

        

      

      


      Section
15.            Authorization; No
Violation.  Guarantor is authorized to execute, deliver and
perform under this Guaranty, which is a valid and binding obligation of
Guarantor, except as the same may be limited by insolvency, bankruptcy,
reorganization, or other laws relating to or affecting the enforcement of
creditors’ rights or by general equitable principles.  No provision or
obligation of Guarantor contained in this Guaranty violates any applicable law,
regulation or ordinance, or any order or ruling of any court or governmental
agency.  No such provision or obligation conflicts with, or
constitutes a breach or default under, any agreement to which Guarantor is a
party.  No consent, approval or authorization of or notice to any
person or entity is required in connection with Guarantor’s execution of and
obligations under this Guaranty.

      


      Section
16.            Additional and Independent
Obligations.  Guarantor’s obligations under this Guaranty are
in addition to its obligations under any other existing or future guaranties,
each of which shall remain in full force and effect until it is expressly
modified or released in a writing signed by Administrative
Agent.  Guarantor’s obligations under this Guaranty are independent of
those of Borrower on the Credit Line.  Administrative Agent or any
other Guaranteed Party may bring a separate action, or commence a separate
reference or arbitration proceeding against Guarantor without first proceeding
against Borrower, any other person or any security that Administrative Agent or
any other Guaranteed Party may hold, and without pursuing any other
remedy.  Administrative Agent’s rights under this Guaranty shall not
be exhausted by any action by Administrative Agent until the Credit Line has
been paid and performed in full.

      


      Section
17.            No Waiver; Consents;
Cumulative Remedies.  Each waiver by Administrative Agent must
be in writing, and no waiver shall be construed as a continuing
waiver.  No waiver shall be implied from Administrative Agent’s or any
other Guaranteed Party’s delay in exercising or failure to exercise any right or
remedy against Borrower, Guarantor or any security.  Consent by
Administrative Agent or the other Guaranteed Parties to any act or omission by
Borrower or Guarantor shall not be construed as a consent to any other or
subsequent act or omission, or as a waiver of the requirement for Administrative
Agent’s or the other Guaranteed Parties’ consent to be obtained in any future or
other instance.  All remedies of Administrative Agent or the other
Guaranteed Parties against Borrower and Guarantor are cumulative.

      


      Section
18.           
 No
Release.  Guarantor shall not be released from its obligations
under this Guaranty except by a writing signed by Administrative Agent and the
other Guaranteed Parties.

      


      Section
19.           
 Heirs,
Successors and Assigns; Participations.  The terms of this
Guaranty shall bind and benefit the heirs, legal representatives, successors and
assigns of Administrative Agent, each Guaranteed Party and Guarantor; provided,
however, that Guarantor may not assign this Guaranty, or assign or delegate any
of its rights or obligations under this Guaranty, without the prior written
consent of Administrative Agent, given only with the consent of all of the other
Guaranteed Parties in each instance.  Each Lender shall have the right
to transfer its Commitment and its outstanding Loans to any other Person on the
terms and subject to the conditions set forth in Section 10.5 of the
Agreement.  Without the consent of or notice to Guarantor,
Administrative Agent and the other Guaranteed Parties may disclose to any
prospective or actual purchasers of any interest in any Loan or any other loans
made by Lenders to Borrower (in the case of a prospective purchase of an
interest in the Loans or any other loan, upon Lender’s receiving its standard
confidentiality letter from the prospective purchaser of the interest in the
Loan or any other loan), any financial or other information relating to
Guarantor, this Guaranty or any security that may at any time be given for this
Guaranty.

      


      
        
          
             


          

          
            F-1-12

            
              

            

          

          
             


          

        

      

      


      Section
20.    
        Notices.  All
notices and other communications provided for herein shall be in writing and
shall be delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopier, in the case of Guarantor, to the address
or telecopier number specified on the signature page hereof, and in the case of
the Administrative Agent, the L/C Issuer and the Lenders, to the addresses or
telecopier numbers specified in the Credit Agreement.  Notices sent by
hand or overnight courier service, or mailed by certified or registered mail,
shall be deemed to have been given when received; notices sent by telecopier
shall be deemed to have been given when sent (except that, if not given during
normal business hours for the recipient, shall be deemed to have been given at
the opening of business on the next business day for the
recipient).  Each of Guarantor and the Guaranteed Parties may change
its address or telecopier number for notices and other communications hereunder
by notice to the other parties.

      


      Section
21.       
     Rules of
Construction.  In this Guaranty, the word “Borrower” includes
each of the named Borrower, each other Loan Party and any other person who at
any time assumes or otherwise becomes primarily liable for all or any part of
the obligations of the named Borrower on the Credit Line.  The word
“person” includes any individual, company, trust or other legal entity of any
kind.  The word “include(s)” means “include(s), without limitation,”
and the word “including” means “including, but not limited to.” When the context
and construction so require, all words used in the singular shall be deemed to
have been used in the plural and vice versa.  No listing of specific
instances, items or matters in any way limits the scope or generality of any
language of this Guaranty.  All headings appearing in this Guaranty
are for convenience only and shall be disregarded in construing this
Guaranty.  The rules of interpretation set forth in Section 1.2 of the
Agreement shall be applicable to this Guaranty and are incorporated herein by
this reference.

      


      Section
22.          
  Costs and
Expenses; Indemnification.

      


      (a)          
 Costs and
Expenses.  Guarantor shall pay (i) all reasonable out-of-pocket
expenses incurred by the Administrative Agent and its Affiliates (including the
reasonable fees, charges and disbursements of counsel for the Administrative
Agent), in connection with the preparation, negotiation, execution and delivery
of this Guaranty and the other Guarantor Documents or any amendments,
modifications or waivers of the provisions hereof or thereof (whether or not the
transactions contemplated hereby or thereby shall be consummated), and (ii) all
out-of-pocket expenses incurred by the Administrative Agent or any other
Guaranteed Party (including the fees, charges and disbursements of any counsel
for any Guaranteed Party), in connection with the enforcement or protection of
its rights in connection with this Guaranty and the other Loan Documents,
including its rights under this Section, including all such out-of-pocket
expenses incurred during any workout, restructuring or negotiations in respect
of the Guaranteed Obligations.

      


      
        
          
             


          

          
            F-1-13

            
              

            

          

          
             


          

        

      

      


      (b)        
   Indemnification.  Guarantor
shall indemnify the Administrative Agent (and any sub-agent thereof), each other
Guaranteed Party, and each Related Party of any of the foregoing Persons (each
such Person being called an “Indemnitee”) against,
and hold each Indemnitee harmless from, any and all losses, claims, damages,
liabilities and related expenses (including the fees, charges and disbursements
of any counsel for any Indemnitee), incurred by any Indemnitee or asserted
against any Indemnitee by any third party or by Guarantor or any other Loan
Party arising out of, in connection with, or as a result of (i) the execution or
delivery of this Guaranty or any other Loan Document or any agreement or
instrument contemplated hereby or thereby, the performance by the parties hereto
or thereto of their respective obligations hereunder or thereunder or the
consummation of the transactions contemplated hereby or thereby, (ii) any Loan
or Letter of Credit or the use or proposed use of the proceeds therefrom
(including any refusal by the L/C Issuer to honor a demand for payment under a
Letter of Credit if the documents presented in connection with such demand do
not strictly comply with the terms of such Letter of Credit), (iii) any actual
or alleged presence or release of Hazardous Materials on or from any property
owned or operated by Borrower or any of its Subsidiaries, or any Environmental
Liability related in any way to Borrower or any of its Subsidiaries, or (iv) any
actual or prospective claim, litigation, investigation or proceeding relating to
any of the foregoing, whether based on contract, tort or any other theory,
whether brought by a third party or by Borrower or any other Loan Party, and
regardless of whether any Indemnitee is a party thereto; provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses (x) are determined by a
court of competent jurisdiction by final and nonappealable judgment to have
resulted from the gross negligence or willful misconduct of such Indemnitee or
(y) result from a claim brought by Borrower or any other Loan Party against an
Indemnitee for breach in bad faith of such Indemnitee’s obligations hereunder or
under any other Loan Document, if Borrower or such other Loan Party has obtained
a final and nonappealable judgment in its favor on such claim as determined by a
court of competent jurisdiction.

      


      (c)     
      Interest.  Any
amounts payable to by Guarantor under this Section 22 or otherwise under this
Guaranty if not paid upon demand shall bear interest from the date of such
demand until paid in full, at a fluctuating interest rate per annum at all times
equal to the Default Rate applicable to Reference Rate Committed Loans to the
fullest extent permitted by applicable Law.  Any such interest shall
be due and payable upon demand and shall be calculated on the basis of a year of
365 or 366 days, as the case may be, and the actual number of days
elapsed.

      


      (d)       
    Payment.  All
amounts due under this Section 22 shall be payable within fifteen days after
demand therefor.

      


      (e)     
      Survival.  The
agreements in this Section 22 shall survive the resignation of the
Administrative Agent and the L/C Issuer, the replacement of any Lender, the
termination of the Commitments and the repayment, satisfaction or discharge of
all the other Guaranteed Obligations.

      


      Section
23.         
   Consideration.  Guarantor
acknowledges that it expects to benefit from Lenders’ extension of the Credit
Line to Borrower because of its relationship to Borrower, and that it is
executing this Guaranty in consideration of that anticipated
benefit.

      


      
        
          
             


          

          
            F-1-14

            
              

            

          

          
             


          

        

      

      


      Section
24.        
    Payments.

      


      (a)        
   Guarantor hereby agrees, in furtherance of the foregoing
provisions of this Guaranty and not in limitation of any other right which any
Guaranteed Party or any other Person may have against Guarantor by virtue
hereof, upon the failure of Borrower to pay any of the Guaranteed Obligations
when and as the same shall become due, whether at stated maturity, by required
prepayment, declaration, acceleration, demand or otherwise (including amounts
that would become due but for the operation of the automatic stay under §362(a)
of the Bankruptcy Code), Guarantor shall forthwith pay, or cause to be paid, in
cash, to the Administrative Agent an amount equal to the amount of the
Guaranteed Obligations then due as aforesaid (including interest which, but for
the filing of a petition in any Insolvency Proceeding with respect to Borrower,
would have accrued on such Guaranteed Obligations, whether or not a claim is
allowed against Borrower for such interest in any such Insolvency
Proceeding).  Guarantor shall make each payment hereunder,
unconditionally in full without set-off, counterclaim or other defense, on the
day when due in Dollars, in immediately available funds, to the Administrative
Agent at such office of the Administrative Agent and to such account as the
Administrative Agent shall specify in writing to Guarantor.

      


      (b)         
  Any and all payments by or on account of any Guaranteed Obligation
hereunder or under any other Guarantor Document shall be made free and clear of
and without reduction or withholding for any Indemnified Taxes or Other Taxes,
provided that if Guarantor shall be required by applicable law to deduct any
Indemnified Taxes (including any Other Taxes) from such payments, then (i) the
sum payable shall be increased as necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section) the Guaranteed Party receives an amount equal to the sum it would
have received had no such deductions been made, (ii) Guarantor shall make such
deductions and (iii) Guarantor shall timely pay the full amount deducted to the
relevant Governmental Authority in accordance with applicable law.

      


      (c)           
Without limiting the provisions of paragraph (b) above, Guarantor shall timely
pay any Other Taxes to the relevant Governmental Authority in accordance with
applicable law.

      


      (d)           
Guarantor shall indemnify the Guaranteed Parties, within ten days after demand
therefor, for the full amount of any Indemnified Taxes or Other Taxes (including
Indemnified Taxes or Other Taxes imposed or asserted on or attributable to
amounts payable under this Section) paid by the Guaranteed Parties and any
penalties, interest and reasonable expenses arising therefrom or with respect
thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority.  A
certificate as to the amount of such payment or liability delivered to Guarantor
by a Guaranteed Party (with a copy to the Administrative Agent), or by the
Administrative Agent on its own behalf or on behalf of another Guaranteed Party,
shall be conclusive absent manifest error.

      


      (e)           
As soon as practicable after any payment of Indemnified Taxes or Other Taxes by
Guarantor to a Governmental Authority, Guarantor shall deliver to the
Administrative Agent the original or a certified copy of a receipt issued by
such Governmental Authority evidencing such payment, a copy of the return
reporting such payment or other evidence of such payment reasonably satisfactory
to the Administrative Agent.

      


      
        
          
             


          

          
            F-1-15

            
              

            

          

          
             


          

        

      

      


      (f)       
     Any payments by Guarantor hereunder the
application of which is not otherwise provided for herein, shall be applied in
the order specified in Section 8.3 of the Credit Agreement.

      


      (g)       
    To the extent that any payment by or on behalf of
Borrower is made to the Administrative Agent or any other Guaranteed Party, or
the Administrative Agent or any other Guaranteed Party exercises its right of
setoff, and such payment or the proceeds of such setoff or any part thereof is
subsequently invalidated, declared to be fraudulent or preferential, set aside
or required (including pursuant to any settlement entered into by the
Administrative Agent or any other Guaranteed Party in its discretion) to be
repaid to a trustee, receiver or any other party, in connection with any
proceeding under any Insolvency Proceeding or otherwise, then (i) to the extent
of such recovery, the obligation or part thereof originally intended to be
satisfied shall be revived and continued in full force and effect as if such
payment had not been made or such setoff had not occurred, and (ii) each Lender
and the L/C Issuer severally (by its acceptance hereof) agrees to pay to the
Administrative Agent upon demand its applicable share (without duplication) of
any amount so recovered from or repaid by the Administrative Agent, plus
interest thereon from the date of such demand to the date such payment is made
at a rate per annum equal to the Federal Funds Rate from time to time in
effect.  The obligations of the Lenders and the L/C Issuer under
clause (ii) of the preceding sentence shall survive the payment in full of the
Guaranteed Obligations and the termination of this Guaranty.

      


      (h)        
   Notwithstanding anything to the contrary contained herein or
in Guarantor Document, the interest paid or agreed to be paid hereunder and
under the other Guarantor Documents shall not exceed the maximum rate of
non-usurious interest permitted by applicable Law (the “Maximum
Rate”).  If the Administrative Agent or any other Guaranteed
Party shall receive interest in an amount that exceeds the Maximum Rate, the
excess interest shall be applied to the principal of the Guaranteed Obligations
or, if it exceeds such unpaid principal, refunded to Guarantor.  In
determining whether the interest contracted for, charged, or received by the
Administrative Agent or any other Guaranteed Party exceeds the Maximum Rate,
such Person may, to the extent permitted by applicable Law, (i) characterize any
payment that is not principal as an expense, fee, or premium rather than
interest, (ii) exclude voluntary prepayments and the effects thereof, and (iii)
amortize, prorate, allocate, and spread in equal or unequal parts the total
amount of interest throughout the contemplated term of the Obligations
hereunder.

      


      (i)           
 The agreements in this Section 24 shall survive the payment of all
Guaranteed Obligations.

      


      Section
25.            Stay of
Acceleration.  In the event that acceleration of the time for
payment of any of the obligations guaranteed hereunder is stayed, in connection
with any Insolvency Proceeding commenced by or against Guarantor or Borrower, or
otherwise, all such amounts shall nonetheless be payable by Guarantor
immediately upon demand by the Administrative Agent.

      


      
        
          
             


          

          
            F-1-16

            
              

            

          

          
             


          

        

      

      


      Section
26.      
      Setoff.  If
an Event of Default shall have occurred and be continuing, each Lender and the
L/C Issuer is hereby authorized at any time and from time to time, to the
fullest extent permitted by applicable law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final, in whatever
currency) at any time held and other obligations (in whatever currency) at any
time owing by such Lender or the L/C Issuer to or for the credit or the account
of Guarantor against any and all of the obligations of Guarantor now or
hereafter existing under this Guaranty or any other Guarantor Document to such
Lender or the L/C Issuer, irrespective of whether or not such Lender or the L/C
Issuer shall have made any demand under this Guaranty or any other Loan Document
and although such obligations of Guarantor may be contingent or unmatured or are
owed to a branch or office of such Lender or the L/C Issuer different from the
branch or office holding such deposit or obligated on such
indebtedness.  The rights of each Lender and the L/C Issuer under this
Section are in addition to other rights and remedies (including other rights of
setoff) that such Lender or the L/C Issuer may have.  Each Lender and
the L/C Issuer (by its acceptance hereof) agrees to notify Guarantor and the
Administrative Agent promptly after any such setoff and application, provided
that the failure to give such notice shall not affect the validity of such
setoff and application.

      


      Section
27.        
    Integration;
Modifications.  This Guaranty (a) integrates all the terms and
conditions mentioned in or incidental to this Guaranty, (b) supersedes all oral
negotiations and prior writings with respect to its subject matter, and (c) is
intended by Guarantor, the Administrative Agent and the other Guaranteed Parties
as the final expression of the agreement with respect to the terms and
conditions set forth in this Guaranty and as the complete and exclusive
statement of the terms agreed to by Guarantor, the Administrative Agent and the
other Guaranteed Parties.  No representation, understanding, promise
or condition shall be enforceable against Guarantor or any Guaranteed Party
unless it is contained in this Guaranty.  This Guaranty may not be
modified except in a writing signed by both Administrative Agent and
Guarantor.  No course of prior dealing, usage of trade, parol or
extrinsic evidence of any nature shall be used to supplement, modify or vary any
of the terms hereof.

      


      Section
28.    
        Miscellaneous.  The
legal incapacity of any Guarantor shall not terminate the obligations of such
Guarantor under this Guaranty, including its obligations with regard to future
advances under the Loan Documents.  The liability of all persons who
are in any manner obligated under this Guaranty shall be joint and
several.  The illegality or unenforceability of one or more provisions
of this Guaranty shall not affect any other provision.  Time is of the
essence in the performance of this Guaranty by Guarantor.

      


      Section
29.       
     Counsel.  Guarantor
acknowledges that Guarantor has had adequate opportunity to carefully read this
Guarantee and to consult with an attorney of Guarantor’s choice prior to signing
it.

      


      Section
30.         
   USA
PATRIOT Act Notice.  Each Lender that is subject to the Act (as
hereinafter defined) and the Administrative Agent (for itself and not on behalf
of any Lender) hereby notifies Guarantor that pursuant to the requirements of
the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the “Act”), it is required
to obtain, verify and record information that identifies Guarantor, which
information includes the name and address of Guarantor and other information
that will allow such Lender or the Administrative Agent, as applicable, to
identify Guarantor in accordance with the Act.

      


      
        
          
             


          

          
            F-1-17

            
              

            

          

          
             


          

        

      

      


      Section
31.             Time is of the
Essence.  Time is of the essence of this Guaranty and the other
Guarantor Documents.

      


      Section
32.       
     Severability.  If
any provision of this Guaranty or the other Guarantor Documents is held to be
illegal, invalid or unenforceable, (a) the legality, validity and enforceability
of the remaining provisions of this Guaranty and the other Guarantor Documents
shall not be affected or impaired thereby and (b) the parties shall endeavor in
good faith negotiations to replace the illegal, invalid or unenforceable
provisions with valid provisions the economic effect of which comes as close as
possible to that of the illegal, invalid or unenforceable
provisions.  The invalidity of a provision in a particular
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.

      


      Section
33.          
  Defined
Terms.  As used in this Guaranty (including in the recitals
hereof), the following terms shall have the following meanings:

      


      “Bankruptcy Code”
means the Federal Bankruptcy Reform Act of 1978 (11 U.S.C. §101, et
seq.).

      


      “Excluded Taxes”
means, with respect to any Guaranteed Party or any other recipient of any
payment to be made by or on account of any Guaranteed Obligation hereunder, (a)
taxes imposed on or measured by its overall net income (however denominated),
and franchise taxes imposed on it, under the laws of any Governmental Authority,
(b) any branch profits taxes imposed by any Governmental Authority, and (c) in
the case of a Guaranteed Party that is a Foreign Lender, any withholding tax
that is imposed on amounts payable to such Foreign Lender at the time such
Foreign Lender becomes a party to the Agreement (or designates a new Lending
Office) or is attributable to such Foreign Lender’s failure or inability (other
than as a result of a Change in Law) to comply with Section 3.1.5 of the
Agreement, except to the extent that such Foreign Lender (or its assignor, if
any) was entitled, at the time of designation of a new Lending Office (or
assignment), to receive additional amounts with respect to such withholding tax
pursuant to Section 3.1.5 of the Agreement.

      


      “Guaranteed
Obligations” means the obligations guaranteed by Guarantor hereunder, as
set forth in Sections 1 and 2.

      


      “Guaranteed Parties”
means the Administrative Agent, the L/C Issuer, the Swing Line Lender and the
Lenders.

      


      “Guarantor Documents”
means this Guaranty and all other certificates, documents, agreements and
instruments delivered to any Guaranteed Party under or in connection with this
Guaranty.

      


      “Indemnified Taxes”
means Taxes other than Excluded Taxes.

      


      “Loan Party” means
Borrower, Guarantor and each Permitted Affiliate.

      


      “Other Taxes” means
all present or future stamp or documentary taxes or any other excise or property
taxes, charges or similar levies arising from any payment made hereunder or
under any other Guarantor Document or from the execution, delivery or
enforcement of, or otherwise with respect to, this Guaranty or any other
Guarantor Document.  Other Taxes shall not include any Excluded
Taxes.

      


      
        
          
             


          

          
            F-1-18

            
              

            

          

          
             


          

        

      

      


      “Taxes” means all
present or future taxes, levies, imposts, duties, deductions, withholdings,
assessments, fees or other charges imposed by any Governmental Authority and
arising from any payment made hereunder or under any other Guarantor Document or
from the execution, delivery or enforcement of, or otherwise with respect to,
this Guaranty or any other Guarantor Document, including any interest, additions
to tax or penalties applicable thereto.

      


      IN
WITNESS WHEREOF, Guarantor has executed this Payment Guaranty, as of the date
first above written.

      


      
        	 
      	
                ESSEX
      PROPERTY TRUST, INC.,

              	 
      
	 
      	
                a
      Maryland corporation

              	 
      
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	
                By:

              	 
      	 
      
	 
      	
                Name:

              	 
      	 
      
	 
      	
                Title:

              	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	
                Address
      Where Notices to Guarantor are to be

              	 
      
	 
      	 
      	 
      	 
      
	 
      	
                Essex
      Property Trust, Inc.

              	 
      
	 
      	
                925
      E. Meadow Drive

              	 
      
	 
      	
                Palo
      Alto, California  94303

              	 
      
	 
      	
                Attn:  Mark
      J. Mikl; Jordan E. Ritter and Michael T. Dance

              	 
      
	 
      	
                Facsimile:

              	
                (650)
      843-1514; (650) 858-1372

              	 
      
	 
      	 
      	
                and
      (650) 858-0139

              	 
      
	 
      	 
      	 
      	 
      
	 
      	
                Address
      Where Notices to Administrative Agent

              	 
      
	 
      	
                are
      to be sent:

              	 
      
	 
      	 
      	 
      	 
      
	 
      	
                PNC
      Bank, National Association

              	 
      
	 
      	
                500
      First Avenue

              	 
      
	 
      	
                Pittsburgh
      PA  5219

              	 
      
	 
      	
                Attention:  Trina
      Barkley

              	 
      
	 
      	
                Mail
      Stop:  P7-PFSC-04-P

              	 
      
	 
      	
                Telephone:  412-768-0423

              	 
      
	 
      	
                Facsimile:  412-762-8672

              	 
      
	 
      	
                Email:  trina.barkley@pncbank.com

              	 
      
	 
      	 
      	 
      	 
      
	 
      	
                and

              	 
      
	 
      	 
      	 
      	 
      
	 
      	
                PNC
      Real Estate

              	 
      
	 
      	
                One
      PNC Plaza, 249 Fifth Avenue

              	 
      
	 
      	
                Pittsburgh
      PA  15222

              	 
      


      

      


      
        
          
             


          

          
            F-1-19

            
              

            

          

          
             


          

        

      

       

      
        	 
      	
                Attention:  Karen
      Kennedy

              
	 
      	
                Mailstop:  P1-POPP-19-1

              
	 
      	
                Telephone:  412-762-3293

              
	 
      	
                Facsimile:  412-762-6500

              
	 
      	
                Email:  kkennedy@pnc.com

              


      

      


      
        
          
             


          

          
            F-1-20

            
              

            

          

          
             


          

        

      

      


      EXHIBIT
F-2

      


      FORM
OF PAYMENT GUARANTY (PERMITTED AFFILIATE)

      


      [See
Attached]

      


      
        
          
             


          

          
            F-2

            
              

            

          

          
             


          

        

      

      


      PAYMENT
GUARANTY

      (Permitted
Affiliate - Revolving Loans and Letters of Credit)

      


      THIS
PAYMENT GUARANTY (this “Payment Guaranty”) is
dated as of December 18, 2009, and is made by each entity named in the signature
pages hereof (each a “Permitted Affiliate”
and collectively, the “Permitted
Affiliates”), in favor of PNC BANK, NATIONAL ASSOCIATION, as
administrative agent (in such capacity, “Administrative
Agent”) for the lenders (each, a “Lender” and
collectively, “Lenders”) from time
to time party to the Agreement (as hereinafter defined) and as Swing Line Lender
and L/C Issuer.  The Administrative Agent, the Lenders, the Swing Line
Lender and the L/C Issuer are sometimes hereinafter referred to collectively as
the “Guaranteed
Parties” and each, individually, as a “Guaranteed
Party”.

      


      Factual
Background

      


      A.      
     Essex Portfolio, L.P., a California limited
partnership (“Borrower”),
Administrative Agent and the lenders party thereto entered into a Revolving
Credit Agreement dated as of December 18, 2009 (as amended from time to time,
the “Agreement”), pursuant
to which such lenders agreed to make available to Borrower an unsecured
revolving line of credit and letter of credit facility (the “Credit Line”) to
Borrower on the terms and subject to the conditions set forth
therein.

      


      B.       
    Each Permitted Affiliate is executing this Payment
Guaranty to induce Lenders to extend the Credit Line and enter into the
Agreement.

      


      C.        
   This Payment Guaranty is one of several Loan Documents, as
defined and designated in the Agreement.  The Loan Documents also
include the Agreement and certain other specified instruments and
agreements.  Capitalized terms used in this Payment Guaranty shall
have the meanings set forth in Section 35 or in the text of this Payment
Guaranty and, if not defined in Section 35 or otherwise herein, shall have the
meanings given to them in the Agreement.

      


      Guaranty

      


      Section
1.           
  Guaranty
of Credit Line; Limitation.

      


      (a)           Each
Permitted Affiliate hereby unconditionally and irrevocably jointly and severally
guaranties to the Guaranteed Parties, and their respective successors,
transferees and assigns, the full and prompt payment of the Credit Line when due
(whether at stated maturity, by required prepayment, declaration, acceleration,
demand or otherwise) and performance of the indebtedness, liabilities and other
obligations of Borrower to the Guaranteed Parties under or in connection with
the Agreement, the Notes and the other Loan Documents, and unconditionally and
irrevocably agrees to pay to Administrative Agent, for its own account and for
the account of the other Guaranteed Parties, upon the occurrence of an Event of
Default under and as defined in the Agreement, the full amount of the Credit
Line.  This is a guaranty of payment, not of collection.  If
Borrower defaults in the payment when due of all or any part of the Credit Line,
Permitted Affiliates shall in lawful money of the United States pay to
Administrative Agent or order, on demand, all sums due and owing on the Credit
Line, including all interest, charges, fees and other sums, costs and
expenses.

      


      
        
          
             


          

          
            F-2-1

            
              

            

          

          
             


          

        

      

      


      (b)           Notwithstanding
anything to the contrary contained herein, to the extent that any Permitted
Affiliate shall, under this Payment Guaranty, repay any of the Credit Line, the
liability of such Permitted Affiliate hereunder shall be limited to an amount
equal to the maximum amount of liability for payments on the Credit Line which
could be asserted against such Permitted Affiliate hereunder without (i)
rendering such Permitted Affiliate “insolvent” within the meaning of Section
101(31) of the Bankruptcy Code, Section 2 of the Uniform Fraudulent Transfer Act
(“UFTA”) or
Section 2 of the Uniform Fraudulent Conveyance Act (“UFCA”), (ii)
rendering such Permitted Affiliate no longer Solvent, or (iii) rendering such
Permitted Affiliate’s obligations hereunder unlawful or subject to avoidance as
a fraudulent transfer or conveyance under Section 548 of the Bankruptcy Code or
any comparable provisions of applicable state law (collectively, the “Fraudulent Transfer
Laws”), in each case after giving effect to all other liabilities of such
Permitted Affiliate, contingent or otherwise, that are relevant under the
Fraudulent Transfer Laws (the greatest amount payable by such Permitted
Affiliate without rendering such Permitted Affiliate’s obligations hereunder
unlawful or being subject to avoidance under the Fraudulent Transfer Laws being
at any time, the “Maximum
Liability”).  To the extent that any Permitted Affiliate shall,
under this Payment Guaranty, repay any of the Credit Line, then such Permitted
Affiliate shall, subject to the provisions of Sections 7 and 10 below, be
entitled to contribution and indemnification from, and be reimbursed by, each of
the other Permitted Affiliates with respect thereto in an amount, for each other
Permitted Affiliate, equal to a fraction of such payment, the numerator of which
fraction is such other Permitted Affiliate’s Maximum Liability as of the date of
determination and the denominator of which is the sum of the Maximum Liability
of such Permitted Affiliate and all of the other Permitted Affiliates as of the
date of determination.

      


      Section
2.          
   Credit
Line.  In this Payment Guaranty, the term “Credit Line” is
broadly defined to mean and include all primary, secondary, direct, indirect,
fixed and contingent obligations of Borrower to pay principal, interest,
prepayment charges, late charges, loan fees and any other fees, charges, sums,
costs and expenses which may be owing at any time under the Loan Documents, as
any or all of them may from time to time be modified, amended, extended or
renewed, including all unpaid principal of the Loans, all amounts owing in
respect of the L/C Obligations, all interest accrued thereon, all
indemnification obligations of Borrower under or in connection with the
Agreement, the Notes and the other Loan Documents, and all other amounts payable
by Borrower to the Guaranteed Parties thereunder or in connection therewith,
including all such amounts that may be or hereafter become unenforceable or be
or hereafter become an allowed or disallowed claim under any Insolvency
Proceeding, and including interest that accrues after the commencement by or
against Borrower or any Affiliate thereof under any Insolvency Proceeding naming
such Person as the debtor in such proceeding.  For purposes of this
Payment Guaranty, the Credit Line includes all such obligations which may arise
in connection with any transactions between Borrower and Lenders which may
afford interest rate protection to all or part of the Credit Line, if any, and
all other indebtedness, liabilities and obligations to be paid or performed by
Permitted Affiliates in connection with this Payment Guaranty (including any and
all amounts due under Section 22).

      


      
        
          
             


          

          
            F-2-2

            
              

            

          

          
             


          

        

      

      


      Section
3.       
      Rights of Administrative
Agent and the other Guaranteed Parties.  Each Permitted
Affiliate authorizes Administrative Agent and/or the other Guaranteed Parties to
perform any or all of the following acts at any time in its sole discretion, all
without notice to any Permitted Affiliate and without affecting any Permitted
Affiliate’s obligations under this Payment Guaranty:

      


      (a)        
   alter any terms of the Credit Line or any part of it,
including renewing, compromising, extending or accelerating, or otherwise
changing the time for payment of, or increasing or decreasing the rate of
interest on, the Credit Line or any part of it;

      


      (b)      
     take and hold security for the Credit Line or this
Payment Guaranty, accept additional or substituted security for either, and
subordinate, exchange, enforce, waive, release, compromise, fail to perfect and
sell or otherwise dispose of any such security;

      


      (c)       
    direct the order and manner of any sale of all or any
part of any security now or later to be held for the Credit Line or this Payment
Guaranty, and Administrative Agent or any other Guaranteed Party may also bid at
any such sale;

      


      (d)         
  apply any payments or recoveries from Borrower, any Permitted
Affiliate, any other guarantor or any other source, and any proceeds of any
security, to Borrower’s obligations under the Loan Documents in such manner,
order and priority as Administrative Agent may elect whether or not those
obligations are guarantied by this Payment Guaranty or secured at the time of
the application;

      


      (e)     
      release Borrower of its liability for the
Credit Line or any part of it;

      


      (f)        
   substitute, add or release any one or more guarantors or
endorsers; or

      


      (g)       
    in addition to the Credit Line, extend other credit to
Borrower, and may take and hold security for the credit so extended, all without
affecting any Permitted Affiliate’s liability under this Payment
Guaranty.

      


      Section
4.        
     Guaranty to be
Absolute.  Each Permitted Affiliate expressly agrees that until
the Credit Line is paid and performed in full and each and every term, covenant
and condition of this Payment Guaranty is fully performed, none of the Permitted
Affiliates shall be released by or because of:

      


      (a)       
    any act or event that might otherwise discharge, reduce,
limit or modify any Permitted Affiliate’s obligations under this Payment
Guaranty;

      


      (b)       
    any waiver, extension, modification, forbearance, delay
or other act or omission of Administrative Agent or any other Guaranteed Party,
or its failure to proceed promptly or otherwise as against Borrower, any
Permitted Affiliate, any other guarantor or any security;

      


      (c)        
   any action, omission or circumstance which might increase the
likelihood that any Permitted Affiliate may be called upon to perform under this
Payment Guaranty or which might affect the rights or remedies of any Permitted
Affiliate as against Borrower or any other Person;

      


      
        
          
             


          

          
            F-2-3

            
              

            

          

          
             


          

        

      

      


      (d)         
  any dealings occurring at any time between Borrower, Administrative
Agent or any other Guaranteed Party, whether relating to the Credit Line or
otherwise; or

      


      (e)        
   any action of Administrative Agent or any other Guaranteed
Party described in Section 3.

      


      Each
Permitted Affiliate hereby acknowledges that absent this Section 4, each
Permitted Affiliate might have a defense to the enforcement of this Payment
Guaranty as a result of one or more of the foregoing acts, omissions,
agreements, waivers or matters.  Each Permitted Affiliate hereby
expressly waives and surrenders any defense to any liability under this Payment
Guaranty based upon any of such acts, omissions, agreements, waivers or
matters.

      


      Section
5.         
    Liability of Permitted
Affiliates.  Each Permitted Affiliate’s obligations under this
Payment Guaranty are and shall be independent, absolute, unconditional and
irrevocable, and shall not be affected by any circumstance which might
constitute a discharge of a surety or guarantor, other than the indefeasible
payment and performance in full of the Credit Line.  Each Permitted
Affiliate’s liability with respect to the Credit Line shall remain in full force
and effect without regard to, and shall not be impaired or affected by, any
Insolvency Proceeding with respect to Borrower, any Permitted Affiliate or any
other Person, or any assignment or other transfer of any Guaranteed Party’s
interests in and rights under this Payment Guaranty or the other Loan Documents,
or any claim, defense, counterclaim or setoff (other than that of prior
performance), that Borrower, any Permitted Affiliate or any other Person may
have or assert; or any amendment, modification, renewal, extension, cancellation
or surrender of any Loan Document or any collateral that may at any time secure
the Credit Line, or any Guaranteed Party’s exchange, release, or waiver of any
other guaranty of all or any part of the Credit Line or any other indebtedness,
obligations or liabilities of Borrower or any other guarantor to any Guaranteed
Party under the Credit Line.

      


      Section
6.            
  Permitted
Affiliate’s Waivers.  Each Permitted Affiliate
waives:

      


      (a)           all
statutes of limitations as a defense to any action or proceeding brought against
any Permitted Affiliate by Administrative Agent, to the fullest extent permitted
by law;

      


      (b)           any
right it may have to require Administrative Agent or any other Guaranteed Party
to proceed against Borrower, proceed against or exhaust any security held from
Borrower, or pursue any other remedy in Administrative Agent’s or any other
Guaranteed Party’s power to pursue;

      


      (c)           any
defense based on any claim that any Permitted Affiliate’s obligations exceed or
are more burdensome than those of Borrower;

      


      (d)           any
defense based on: (i) any legal disability of Borrower, (ii) any release,
discharge, modification, impairment or limitation of the liability of Borrower
to Administrative Agent or any other Guaranteed Party from any cause, whether
consented to by Administrative Agent or any other Guaranteed Party or arising by
operation of law or from any Insolvency Proceeding, and (iii) any rejection or
disaffirmance of the Credit Line, or any part of it, or any security held for
it, in any such Insolvency Proceeding;

      


      
        
          
             


          

          
            F-2-4

            
              

            

          

          
             


          

        

      

      


      (e)           any
defense based on any action taken or omitted by Administrative Agent or any
other Guaranteed Party in any Insolvency Proceeding involving Borrower,
including any election to have Administrative Agent’s or any other Guaranteed
Party’s claim allowed as being secured, partially secured or unsecured, any
extension of credit by Lenders to Borrower in any Insolvency Proceeding, and the
taking and holding by Administrative Agent or the other Guaranteed Parties of
any security for any such extension of credit;

      


      (f)           all
presentments, demands for performance, notices of nonperformance, protests,
notices of protest, notices of dishonor, notices of acceptance of this Payment
Guaranty and of the existence, creation, or incurring of new or additional
indebtedness, and demands and notices of every kind except for any demand or
notice by Administrative Agent to such Permitted Affiliate expressly provided
for in Section 1:

      


      (g)           any
defense based on or arising out of any defense that Borrower may have to the
payment or performance of the Credit Line or any part of it; and

      


      (h)           any
defense based on or arising out of any action of Administrative Agent or any
Lender described in Section 3 or Section 4.

      


      Section
7.           
   Waivers of Subrogation and
Other Rights and Defenses.

      


      (a)           (Upon
a default by Borrower, Administrative Agent and/or any other Guaranteed Party in
their sole discretion, without prior notice to or consent of any Permitted
Affiliate, may elect to: (i) foreclose either judicially or nonjudicially
against any real or personal property security they may hold for the Credit
Line, (ii) accept a transfer of any such security in lieu of foreclosure, (iii)
compromise or adjust the Credit Line or any part of it or make any other
accommodation with Borrower, any Permitted Affiliate or any other guarantor, or
(iv) exercise any other remedy against Borrower or any security.  No
such action by Administrative Agent and/or any other Guaranteed Party shall
release or limit the liability of any Permitted Affiliate, who shall remain
liable under this Payment Guaranty after the action, even if the effect of the
action is to deprive such Permitted Affiliate of any subrogation rights, rights
of indemnity, or other rights to collect reimbursement from Borrower for any
sums paid to Administrative Agent for its own account or for the account of any
other Guaranteed Party, whether contractual or arising by operation of law or
otherwise.  Each Permitted Affiliate expressly agrees that under no
circumstances shall it be deemed to have any right, title, interest or claim in
or to any real or personal property to be held by Administrative Agent or any
other Guaranteed Party or any third party after any foreclosure or transfer in
lieu of foreclosure of any security for the Credit Line.

      


      (b)           Regardless
of whether any Permitted Affiliate may have made any payments to Administrative
Agent for its own account or for the account of any other Guaranteed Party, each
Permitted Affiliate waives, until all indebtedness, liabilities and other
obligations of Borrower to the Guaranteed Parties under or in connection with
the Agreement, the Notes and the other Loan Documents have been indefeasibly
paid in full: (i) all rights of subrogation, all rights of indemnity, and any
other rights to collect reimbursement from Borrower, any other Permitted
Affiliate or any other guarantor for any sums paid to Administrative Agent or
any other Guaranteed Party, whether contractual or arising by operation of law
(including the United States Bankruptcy Code or any successor or similar
statute) or otherwise, (ii) all rights to participate in any security now or
later to be held by Administrative Agent or the other Guaranteed Parties for the
Credit Line, and (iii) all rights to enforce any remedy that Administrative
Agent or any other Guaranteed Party may have against Borrower, any other
Permitted Affiliate or any other guarantor.

      


      
        
          
             


          

          
            F-2-5

            
              

            

          

          
             


          

        

      

      


      (c)           Each
Permitted Affiliate waives such Permitted Affiliate’s rights of subrogation and
reimbursement and any other rights and defenses available to such Permitted
Affiliate by reason of Sections 2787 to 2855, inclusive, of the California Civil
Code including, without limitation, any defenses such Permitted Affiliate may
have to the Payment Guaranty obligation by reason of an election of remedies by
Administrative Agent or any other Guaranteed Party, and any and all benefits
that otherwise might be available to such Permitted Affiliate under California
Civil Code §§1432, 2809, 2810, 2815, 2819, 2839, 2845, 2848, 2849, 2850, 2899
and 3433 and California Code of Civil Procedure §§580a, 580b, 580d and
726.  Accordingly, each Permitted Affiliate waives all rights and
defenses that such Permitted Affiliate may have because Borrower’s debt may at
any time be secured by real property.  This means, among other things:
(A) the Guaranteed Parties may collect from such Permitted Affiliate without
first foreclosing on any real or personal property collateral that may at any
time be pledged by Borrower; and (B) if the Administrative Agent forecloses on
any real property collateral that may at any time be pledged by Borrower: (1)
the amount of the debt may be reduced only by the price for which such
collateral is sold at the foreclosure sale, even if such collateral is worth
more than the sale price, and (2) the Guaranteed Parties may collect from such
Permitted Affiliate even if the Administrative Agent, by foreclosing on such
real property collateral, has destroyed any right such Permitted Affiliate may
have to collect from Borrower.  This is an unconditional and
irrevocable waiver of any rights and defenses any Permitted Affiliate may have
because Borrower’s debt may at any time be secured by real
property.  These rights and defenses include, but are not limited to,
any rights of defenses based upon Section 580a, 580b, 580d or 726 of the
California Code of Civil Procedure.

      


      (d)           Each
Permitted Affiliate waives all right and defenses arising out of an election of
remedies by Administrative Agent or the other Guaranteed Parties, even though
that election of remedies has destroyed such Permitted Affiliate’s rights of
subrogation and reimbursement against Borrower.

      


      (e)           No
provision or waiver in this Payment Guaranty shall be construed as limiting the
generality of any other waiver contained in this Payment Guaranty.

      


      Section
8.         
    Continuing Guaranty;
Reinstatement.  This Guaranty is a continuing guaranty and
agreement of subordination relating to any Guaranteed Obligations, including
Guaranteed Obligations which may exist continuously or which may arise from time
to time under successive transactions, and each Permitted Affiliate expressly
acknowledge that this Payment Guaranty shall remain in full force and effect
notwithstanding that there may be periods in which no Guaranteed Obligations
exist.  This Guaranty shall continue in effect and be binding upon
each Permitted Affiliate until termination of the Commitments and payment and
performance in full of the Guaranteed Obligations.  This Guaranty
shall continue to be effective or shall be reinstated and revived, as the case
may be, if, for any reason, any payment of the Guaranteed Obligations by or on
behalf of Borrower (or receipt of any proceeds of Collateral) shall be
rescinded, invalidated, declared to be fraudulent or preferential, set aside,
voided or otherwise required to be repaid to Borrower, its estate, trustee,
receiver or any other Person (including under the Bankruptcy Code or other state
or federal law), or must otherwise be restored by any Guaranteed Party, whether
as a result of Insolvency Proceedings or otherwise.  To the extent any
payment is so rescinded, set aside, voided or otherwise repaid or restored, the
Guaranteed Obligations shall be revived in full force and effect without
reduction or discharge for such payment.

      


      
        
          
             


          

          
            F-2-6

            
              

            

          

          
             


          

        

      

      


      Section
9.       
      Information Regarding
Borrower and the Property.  Before signing this Payment
Guaranty, each Permitted Affiliate investigated the financial condition and
business operations of Borrower, the present and former condition, uses and
ownership of the Unencumbered Asset Pool, and such other matters as each
Permitted Affiliate deemed appropriate to assure itself of Borrower’s ability to
discharge its obligations under the Loan Documents.  Each Permitted
Affiliate assumes full responsibility for that due diligence, as well as for
keeping informed of all matters which may affect Borrower’s ability to pay and
perform its obligations to Administrative Agent and the other Guaranteed
Parties.  Neither Administrative Agent nor any Lender has a duty to
disclose to any Permitted Affiliate any information that Administrative Agent or
any Lender may have or receive about Borrower’s financial condition or business
operations, or any other circumstances bearing on Borrower’s ability to
perform.

      


      Section
10.            Subordination.  Any
rights of any Permitted Affiliate, whether now existing or later arising, to
receive payment on account of any indebtedness (including interest) owed to it
by Borrower or any other Permitted Affiliate, or to withdraw capital invested by
it in Borrower or any other Permitted Affiliate, or to receive distributions
from Borrower or any other Permitted Affiliate, shall at all times be
subordinate as to lien and time of payment and in all other respects to the full
and prior repayment to Administrative Agent and the other Guaranteed Parties of
the Credit Line.  After and during the continuation of an Event of
Default, each Permitted Affiliate shall not be entitled to enforce or receive
payment of any sums hereby subordinated until the Credit Line has been paid and
performed in full and any such sums received in violation of this Payment
Guaranty shall be received by such Permitted Affiliate in trust for
Administrative Agent and the other Guaranteed Parties.  The foregoing
notwithstanding, as long as no Event of Default is continuing, the Permitted
Affiliates may from receive such reasonable management fees or reasonable salary
from Borrower as Administrative Agent may find reasonably acceptable from time
to time and may receive from Borrower and retain any other amounts that are not
prohibited by the terms of the Agreement.

      


      Section
11.            Permitted Affiliates’
Representations and Warranties.  Each Permitted Affiliate
represents and warrants that:

      


      (a)           Financial Statements True
and Correct.  All financial information furnished or to be
furnished to Administrative Agent regarding such Permitted Affiliate are or will
be true and correct in all material respects determined according to GAAP unless
otherwise provided for herein and do or will fairly represent the financial
condition of such Permitted Affiliate (including all contingent liabilities)
(for purposes of this Section 11(a), the term “material respects” means any
variance in the aggregate amount of $10,000,000.00);

      


      
        
          
             


          

          
            F-2-7

            
              

            

          

          
             


          

        

      

      


      (b)           No Material Adverse
Change.  There has been no material adverse change in any
Permitted Affiliate’s financial condition since the dates of the statements most
recently furnished to Administrative Agent;

      


      (c)           Organization of Permitted
Affiliate.  Each Permitted Affiliate is a corporation,
partnership, or limited liability company duly organized or formed, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation or organization;

      


      (d)           Authorization.  The
execution and compliance with this Payment Guaranty, the Agreement, and the
other Loan Documents to which any Permitted Affiliate is a party are within such
Permitted Affiliate’s powers, have been duly authorized, and do not conflict
with any of such Permitted Affiliate’s organizational documents;

      


      (e)           Enforceable
Agreement.  This Payment Guaranty is a legal, valid and binding
agreement of each Permitted Affiliate, enforceable against such Permitted
Affiliate in accordance with its terms, and any other Loan Document to which
such Permitted Affiliate is a party, when executed and delivered, will be
similarly legal, valid, binding and enforceable, except to the extent that the
enforcement of the rights and remedies of Administrative Agent or the other
Guaranteed Parties may hereafter be subject to bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting generally the enforcement
of creditors’ rights and remedies, and the availability of equitable remedies
may be subject to the discretion of the court before which any proceeding
thereof is brought;

      


      (f)           Good
Standing.  In each state in which each Permitted Affiliate does
business, such Permitted Affiliate is, where required, properly licensed, in
good standing and in compliance with fictitious name statutes;

      


      (g)           No
Conflicts.  Each Permitted Affiliate, to the best of such
Permitted Affiliate’s knowledge, is not in violation of, nor do the terms of
this Payment Guaranty or any other Loan Document conflict with, any law
(including Environmental Laws), regulation or ordinance, any order of any court
or governmental entity, or any covenant or agreement affecting any Permitted
Affiliate which would materially and adversely affect such Permitted Affiliate’s
ability to perform its obligations under this Payment Guaranty or under any
other Loan Document to which such Permitted Affiliate is a party;

      


      (h)           Lawsuits.  There
is no lawsuit, tax claim or other dispute pending or threatened against any
Permitted Affiliate which, if lost, would materially adversely impair such
Permitted Affiliate’s financial condition or ability to repay the Credit
Line;

      


      (i)        
   Other
Obligations.  Each Permitted Affiliate is not in material
default (taking into account all applicable cure periods, if any) on any
material obligation for borrowed money, any purchase money obligation or any
other material lease, commitment, contract, instrument or
obligation;

      


      (j)         
  No
Required Third Party/Governmental Approvals.  No approval,
consent, exemption, authorization, or other action by, or notice to, or tiling
with any third party or any Governmental Authority, is necessary or required in
connection with the execution, delivery or performance of this Payment Guaranty
or any other Loan Document to which any Permitted Affiliate is a party;
and

      


      
        
          
             


          

          
            F-2-8

            
              

            

          

          
             


          

        

      

      


      (k)           Solvency.  Immediately
prior to and after and giving effect to the incurrence of the Permitted
Affiliates’ obligations under this Payment Guaranty each Permitted Affiliate is
and will be Solvent.  “Solvent” shall mean that (i) the fair value of
such Permitted Affiliate’s assets is greater than the amount of such Permitted
Affiliate’s liabilities as such value is established and liabilities evaluated
for purposes of Section 101(32) of the Bankruptcy Code and, in the alternative,
for purposes of the California Uniform Fraudulent Transfer Act and any other
applicable fraudulent conveyance statute; (ii) the present fair saleable value
of such Permitted Affiliate’s assets is not less than the amount that will be
required to pay the probable liability of such Permitted Affiliate on its debts
as they become absolute and matured; (iii) such Permitted Affiliate is able to
realize upon its assets and pay its debts and other liabilities as they mature
in the normal course of business; (iv) such Permitted Affiliate does not intend
to, and does not believe that it will, incur debts or liabilities beyond such
Permitted Affiliate’s ability to pay as such debts and liabilities mature; and
(v) such Permitted Affiliate is not engaged in business or a transaction, and is
not about to engage in business or a transaction, for which such Permitted
Affiliate’s property would constitute unreasonably small capital.

      


      Section
12.          
  Affirmative
Covenant.  Each Permitted Affiliate promises to keep the
following covenant:

      


      (a)           Compliance with
Law.  Each Permitted Affiliate shall comply with all existing
and future laws (including Environmental Laws), regulations, orders, building
restrictions and requirements of, and all agreements with and commitments to,
all Governmental Authorities having jurisdiction over such Permitted Affiliate
or such Permitted Affiliate’s business, as applicable, including those
pertaining to the construction, sale, leasing or financing of any Unencumbered
Asset Pool Property or the environmental condition of any Unencumbered Asset
Pool Property, and with all recorded covenants and restrictions affecting any
Unencumbered Asset Pool Property (all collectively, the “Requirements”).  Notwithstanding
any contrary provision in this Section, (i) each Permitted Affiliate shall have
a right to contest all existing and future Requirements of Law (other than those
relating to Environmental Laws) before complying therewith, and (ii) each
Permitted Affiliate shall have a right to contest all existing and future
Requirements relating to Environmental Laws for one year, before complying
therewith, provide that no Unencumbered Asset Pool Property is in danger of
being lost or forfeited.

      


      (b)           Agreement
Covenants.  Each Permitted Affiliate shall observe, perform and
comply with all covenants expressly applicable to such Permitted Affiliate set
forth in Articles 4, 6 and 10 of the Agreement, which by their terms Borrower is
required to cause such Permitted Affiliate to observe, perform and comply with,
as if such covenants were set forth in full herein.

      


      Section
13.           Negative
Covenants.  Without Administrative Agent’s prior written
consent, which consent shall not be unreasonably withheld or delayed, no
Permitted Affiliate’s jurisdiction of formation, place of business, or chief
executive office (if such Permitted Affiliate has more than one place of
business) shall change, except upon thirty (30) days’ prior written notice to
Administrative Agent.

      


      
        
          
             


          

          
            F-2-9

            
              

            

          

          
             


          

        

      

      


      Section
14.        
    Governing Law; Jurisdiction
and Dispute Resolution.

      


      (i)       
    GOVERNING
LAW.  THIS PAYMENT GUARANTY IS TO BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF CALIFORNIA (AS PERMITTED
BY SECTION 1646.5 OF THE CALIFORNIA CIVIL CODE OR ANY SIMILAR SUCCESSOR
PROVISION), WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW RULE THAT WOULD CAUSE THE
APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE INTERNAL LAWS OF THE
STATE OF CALIFORNIA TO THE RIGHTS AND DUTIES OF THE PARTIES.

      


      (ii)      
     SUBMISSION TO
JURISDICTION.  EACH PERMITTED AFFILIATE AND, BY ITS ACCEPTANCE
OF THIS GUARANTY, THE ADMINISTRATIVE AGENT, EACH IRREVOCABLY AND UNCONDITIONALLY
SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE
COURTS OF THE STATE OF CALIFORNIA SITTING IN SAN FRANCISCO COUNTY AND OF THE
UNITED STATES DISTRICT COURT OF THE NORTHERN DISTRICT OF CALIFORNIA, AND ANY
APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS PAYMENT GUARANTY OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION
OR ENFORCEMENT OF ANY JUDGMENT, AND EACH PERMITTED AFFILIATE AND EACH GUARANTEED
PARTY (BY ITS ACCEPTANCE OF THIS PAYMENT GUARANTY) IRREVOCABLY AND
UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH CALIFORNIA STATE COURT OR, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT, AND EACH
PERMITTED AFFILIATE AND EACH GUARANTEED PARTY (BY ITS ACCEPTANCE OF THIS PAYMENT
GUARANTY) AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR
IN ANY OTHER MANNER PROVIDED BY LAW.  NOTHING IN THIS PAYMENT GUARANTY
OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT ANY GUARANTEED PARTY
MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS PAYMENT
GUARANTY OR ANY OTHER LOAN DOCUMENT AGAINST ANY PERMITTED AFFILIATE OR ITS
PROPERTIES IN THE COURTS OF ANY JURISDICTION WHERE SUCH PERMITTED AFFILIATE OR
ITS PROPERTIES ARE LOCATED.

      


      (iii)           WAIVER OF
VENUE.  EACH PERMITTED AFFILIATE AND, BY ITS ACCEPTANCE OF THIS
GUARANTY, THE ADMINISTRATIVE AGENT, IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF
OR RELATING TO THIS PAYMENT GUARANTY OR ANY OTHER LOAN DOCUMENT IN ANY COURT
REFERRED TO IN PARAGRAPH (i) OF THIS SECTION.  EACH PERMITTED
AFFILIATE AND EACH GUARANTEED PARTY (BY ITS ACCEPTANCE OF THIS PAYMENT GUARANTY)
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE
DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING
IN ANY SUCH COURT.

      


      
        
          
             


          

          
            F-2-10

            
              

            

          

          
             


          

        

      

      


      (iv)           SERVICE OF
PROCESS.  EACH PERMITTED AFFILIATE IRREVOCABLY CONSENTS TO
SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION
20.  NOTHING IN THIS PAYMENT GUARANTY WILL AFFECT THE RIGHT OF ANY
GUARANTEED PARTY TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE
LAW.

      


      (v)           WAIVER OF JURY
TRIAL.  EACH PERMITTED AFFILIATE AND EACH GUARANTEED PARTY (BY
ITS ACCEPTANCE HEREOF) IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS PAYMENT GUARANTY OR
ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY
(WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).  EACH PERMITTED
AFFILIATE AND EACH GUARANTEED PARTY (BY ITS ACCEPTANCE HEREOF) (i) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (ii) ACKNOWLEDGES THAT IT
HAVE BEEN INDUCED TO ENTER INTO THIS PAYMENT GUARANTY AND THE OTHER LOAN
DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION.

      


      (vi)           Judicial
Reference.  If any action or proceeding by or against any party
hereto in connection with any of the transactions contemplated by this Payment
Guaranty or any other Loan Document is filed in a forum in which predispute
waivers of the right to a trial by jury are invalid under applicable law, (a)
the court shall, and is hereby directed to, make a general reference pursuant to
California Code of Civil Procedure Section 638 (or similar applicable law) to a
referee (who shall be a single active or retired judge) to hear and determine
all of the issues in such action or proceeding (whether of fact or of law) and
to report a statement of decision, provided that at the option of any party to
such proceeding, any such issues pertaining to a “provisional remedy” (or
similar term) as defined in California Code of Civil Procedure Section 1281.8
(or similar applicable law) shall be heard and determined by the court, and (b)
the prevailing party, or the non-dismissing party in the event of a voluntary
dismissal by the party instituting the action, shall be entitled to the full
amount of all fees and expenses of any referee appointed in such action or
proceeding.

      


      Section
15.       
     Authorization; No
Violation.  Each Permitted Affiliate is authorized to execute,
deliver and perform under this Payment Guaranty, which is a valid and binding
obligation of such Permitted Affiliate, except as the same may be limited by
insolvency, bankruptcy, reorganization, or other laws relating to or affecting
the enforcement of creditors’ rights or by general equitable
principles.  No provision or obligation of any Permitted Affiliate
contained in this Payment Guaranty violates any applicable law, regulation or
ordinance, or any order or ruling of any court or governmental
agency.  No such provision or obligation conflicts with, or
constitutes a breach or default under, any agreement to which such Permitted
Affiliate is a party.  No consent, approval or authorization of or
notice to any person or entity is required in connection with such Permitted
Affiliate’s execution of and obligations under this Payment
Guaranty.

      


      
        
          
             


          

          
            F-2-11

            
              

            

          

          
             


          

        

      

      


      Section
16.            Additional and Independent
Obligations.  Each Permitted Affiliate’s obligations under this
Payment Guaranty are in addition to its obligations under any other existing or
future guaranties, each of which shall remain in full force and effect until it
is expressly modified or released in a writing signed by Administrative Agent in
accordance with the terms of the Agreement.  Each Permitted
Affiliate’s obligations under this Payment Guaranty are joint and several, and
are independent of those of each other Permitted Affiliate, each other guarantor
and Borrower on the Credit Line.  Administrative Agent or any other
Guaranteed Party may bring a separate action, or commence a separate reference
or arbitration proceeding against any Permitted Affiliate without first
proceeding against Borrower, any other Permitted Affiliate, any other guarantor,
any other Person or any security that Administrative Agent or any other
Guaranteed Party may hold, and without pursuing any other
remedy.  Administrative Agent’s rights under this Payment Guaranty
shall not be exhausted by any action by Administrative Agent until the Credit
Line has been paid and performed in full.

      


      Section
17.            No Waiver; Consents;
Cumulative Remedies.  Each waiver by Administrative Agent must
be in writing, and no waiver shall be construed as a continuing
waiver.  No waiver shall be implied from Administrative Agent’s or any
other Guaranteed Party’s delay in exercising or failure to exercise any right or
remedy against Borrower, any Permitted Affiliate, any other guarantor or any
security.  Consent by Administrative Agent or the other Guaranteed
Parties to any act or omission by Borrower, any Permitted Affiliate, any other
guarantor or any other Person shall not be construed as a consent to any other
or subsequent act or omission, or as a waiver of the requirement for
Administrative Agent’s or the other Guaranteed Parties’ consent to be obtained
in any future or other instance.  All remedies of Administrative Agent
or the other Guaranteed Parties against Borrower, each Permitted Affiliate and
each other guarantor are cumulative.

      


      Section
18.            No
Release.  Each Permitted Affiliate shall not be released from
its obligations under this Payment Guaranty except by a writing signed by
Administrative Agent in accordance with the terms of the Agreement.

      


      Section
19.            Heirs, Successors and
Assigns; Participations.  The terms of this Payment Guaranty
shall bind and benefit the heirs, legal representatives, successors and assigns
of Administrative Agent, each Guaranteed Party and each Permitted Affiliate;
provided, however, that no
Permitted Affiliate may assign this Payment Guaranty, or assign or delegate any
of its rights or obligations under this Payment Guaranty, without the prior
written consent of Administrative Agent in accordance with the terms of the
Agreement.  Each Lender shall have the right to transfer its
Commitment and its outstanding Loans to any other Person on the terms and
subject to the conditions set forth in Section 10.5 of the
Agreement.  Without the consent of or notice to any Permitted
Affiliate, Administrative Agent and the other Guaranteed Parties may disclose to
any prospective or actual purchasers of any interest in any Loan or any other
loans made by Lenders to Borrower (in the case of a prospective purchase of an
interest in the Loans or any other loan, upon Lender’s receiving its standard
confidentiality letter from the prospective purchaser of the interest in the
Loan or any other loan), any financial or other information relating to any
Permitted Affiliate, this Payment Guaranty or any security that may at any time
be given for this Payment Guaranty.

      


      
        
          
             


          

          
            F-2-12

            
              

            

          

          
             


          

        

      

      


      Section
20.            Notices.  All
notices and other communications provided for herein shall be in writing and
shall be delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopier, in the case of any Permitted Affiliate,
to the address or telecopier number specified on the signature page hereof, and
in the case of the Administrative Agent, the L/C Issuer and the Lenders, to the
addresses or telecopier numbers specified in the Agreement.  Notices
sent by hand or overnight courier service, or mailed by certified or registered
mail, shall be deemed to have been given when received; notices sent by
telecopier shall be deemed to have been given when sent (except that, if not
given during normal business hours for the recipient, shall be deemed to have
been given at the opening of business on the next business day for the
recipient).  Each of the Permitted Affiliates and the Guaranteed
Parties may change its address or telecopier number for notices and other
communications hereunder by notice to the other parties.

      


      Section
21.            Rules of
Construction.  In this Payment Guaranty, the word “Borrower”
includes each of the named Borrower, each other Loan Party and any other person
who at any time assumes or otherwise becomes primarily liable for all or any
part of the obligations of the named Borrower on the Credit Line.  The
word “person” includes any individual, company, trust or other legal entity of
any kind.  The word “include(s)” means “include(s), without
limitation,” and the word “including” means “including, but not limited to.”
When the context and construction so require, all words used in the singular
shall be deemed to have been used in the plural and vice versa.  No
listing of specific instances, items or matters in any way limits the scope or
generality of any language of this Payment Guaranty.  All headings
appearing in this Payment Guaranty are for convenience only and shall be
disregarded in construing this Payment Guaranty.  The rules of
interpretation set forth in Section 1.2 of the Agreement shall be applicable to
this Payment Guaranty and are incorporated herein by this
reference.

      


      Section
22.            Costs and Expenses;
Indemnification.

      


      (i)        
   Costs and
Expenses.  Each Permitted Affiliate shall pay (i) all
reasonable out-of-pocket expenses incurred by the Administrative Agent and its
Affiliates (including the reasonable fees, charges and disbursements of counsel
for the Administrative Agent), in connection with the preparation, negotiation,
execution and delivery of this Payment Guaranty and the other Guarantor
Documents or any amendments, modifications or waivers of the provisions hereof
or thereof (whether or not the transactions contemplated hereby or thereby shall
be consummated), and (ii) all out-of-pocket expenses incurred by the
Administrative Agent or any other Guaranteed Party (including the fees, charges
and disbursements of any counsel for any Guaranteed Party) in connection with
the enforcement or protection of its rights in connection with this Payment
Guaranty and the other Loan Documents, including its rights under this Section,
including all such out-of-pocket expenses incurred during any workout,
restructuring or negotiations in respect of the Guaranteed
Obligations.

      


      
        
          
             


          

          
            F-2-13

            
              

            

          

          
             


          

        

      

      


      (ii)      
     Indemnification.  Each
Permitted Affiliate shall indemnify the Administrative Agent (and any sub-agent
thereof), each other Guaranteed Party, and each Related Party of any of the
foregoing Persons (each such Person being called an “Indemnitee”) against,
and hold each Indemnitee harmless from, any and all losses, claims, damages,
liabilities and related expenses (including the fees, charges and disbursements
of any counsel for any Indemnitee) incurred by any Indemnitee or asserted
against any Indemnitee by any third party or by any Permitted Affiliate or any
other Loan Party arising out of, in connection with, or as a result of (i) the
execution or delivery of this Payment Guaranty or any other Loan Document or any
agreement or instrument contemplated hereby or thereby, the performance by the
parties hereto or thereto of their respective obligations hereunder or
thereunder or the consummation of the transactions contemplated hereby or
thereby, (ii) any Loan or Letter of Credit or the use or proposed use of the
proceeds therefrom (including any refusal by the L/C Issuer to honor a demand
for payment under a Letter of Credit if the documents presented in connection
with such demand do not strictly comply with the terms of such Letter of
Credit), (iii) any actual or alleged presence or release of Hazardous Materials
on or from any property owned or operated by Borrower, any Permitted Affiliates
or any of its Subsidiaries, or any Environmental Liability related in any way to
Borrower, any Permitted Affiliate or any of its Subsidiaries, or (iv) any actual
or prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory, whether
brought by a third party or by Borrower or any other Loan Party, and regardless
of whether any Indemnitee is a party thereto; provided that such indemnity shall
not, as to any Indemnitee, be available to the extent that such losses, claims,
damages, liabilities or related expenses (x) are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted from
the gross negligence or willful misconduct of such Indemnitee or (y) result from
a claim brought by Borrower or any other Loan Party against an Indemnitee for
breach in bad faith of such Indemnitee’s obligations hereunder or under any
other Loan Document, if Borrower or such other Loan Party has obtained a final
and nonappealable judgment in its favor on such claim as determined by a court
of competent jurisdiction.

      


      (iii)           Interest.  Any
amounts payable to by any Permitted Affiliate under this Section 22 or otherwise
under this Payment Guaranty if not paid upon demand shall bear interest from the
date of such demand until paid in full, at a fluctuating interest rate per annum
at all times equal to the Reference Rate applicable to Reference Rate Committed
Loans to the fullest extent permitted by applicable Law.  Any such
interest shall be due and payable upon demand and shall be calculated on the
basis of a year of 365 or 366 days, as the case may be, and the actual number of
days elapsed.

      


      (iv)           Payment.  All
amounts due under this Section 22 shall be payable within fifteen days after
demand therefor.

      


      (v)           Survival.  The
agreements in this Section 22 shall survive the resignation of the
Administrative Agent and the L/C Issuer, the replacement of any Lender, the
termination of the Commitments and the repayment, satisfaction or discharge of
all the other Guaranteed Obligations.

      


      Section
23.            Consideration.  Each
Permitted Affiliate acknowledges that it expects to benefit from Lenders’
extension of the Credit Line to Borrower because of its relationship to
Borrower, and that it is executing this Payment Guaranty in consideration of
that anticipated benefit.

      


      
        
          
             


          

          
            F-2-14

            
              

            

          

          
             


          

        

      

      


      Section
24.       
     Payments.

      


      (a)    
       Each Permitted Affiliate hereby
agrees, in furtherance of the foregoing provisions of this Payment Guaranty and
not in limitation of any other right which any Guaranteed Party or any other
Person may have against any Permitted Affiliate by virtue hereof, upon the
failure of Borrower to pay any of the Guaranteed Obligations when and as the
same shall become due, whether at stated maturity, by required prepayment,
declaration, acceleration, demand or otherwise (including amounts that would
become due but for the operation of the automatic stay under §362(a) of the
Bankruptcy Code), such Permitted Affiliate shall forthwith pay, or cause to be
paid, in cash, to the Administrative Agent an amount equal to the amount of the
Guaranteed Obligations then due as aforesaid (including interest which, but for
the filing of a petition in any Insolvency Proceeding with respect to Borrower,
would have accrued on such Guaranteed Obligations, whether or not a claim is
allowed against Borrower for such interest in any such Insolvency
Proceeding).  Each Permitted Affiliate shall make each payment
hereunder, unconditionally in full without set-off, counterclaim or other
defense, on the day when due in Dollars, in immediately available funds, to the
Administrative Agent at such office of the Administrative Agent and to such
account as the Administrative Agent shall specify in writing to the Permitted
Affiliates.

      


      (b)       
    Any and all payments by or on account of any Guaranteed
Obligation hereunder or under any other Guarantor Document shall be made free
and clear of and without reduction or withholding for any Indemnified Taxes or
Other Taxes, provided that if any Permitted Affiliate shall be required by
applicable law to deduct any Indemnified Taxes (including any Other Taxes) from
such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Guaranteed Party receives an
amount equal to the sum it would have received had no such deductions been made,
(ii) such Permitted Affiliate shall make such deductions and (iii) such
Permitted Affiliate shall timely pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.

      


      (c)     
      Without limiting the provisions of paragraph
(b) above, each Permitted Affiliate shall timely pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.

      


      (d)         
  Each Permitted Affiliate shall indemnify the Guaranteed Parties,
within fifteen days after demand therefor, for the full amount of any
Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes
imposed or asserted on or attributable to amounts payable under this Section)
paid by the Guaranteed Parties and any penalties, interest and reasonable
expenses arising therefrom or with respect thereto, whether or not such
Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted
by the relevant Governmental Authority.  A certificate as to the
amount of such payment or liability delivered to any Permitted Affiliate by a
Guaranteed Party (with a copy to the Administrative Agent), or by the
Administrative Agent on its own behalf or on behalf of another Guaranteed Party,
shall be conclusive absent manifest error.

      


      
        
          
             


          

          
            F-2-15

            
              

            

          

          
             


          

        

      

      


      (e)        
   As soon as practicable after any payment of Indemnified Taxes
or Other Taxes by any Permitted Affiliate to a Governmental Authority, such
Permitted Affiliate shall deliver to the Administrative Agent the original or a
certified copy of a receipt issued by such Governmental Authority evidencing
such payment, a copy of the return reporting such payment or other evidence of
such payment reasonably satisfactory to the Administrative Agent.

      


      (f)       
    Any payments by any Permitted Affiliate hereunder the
application of which is not otherwise provided for herein, shall be applied in
the order specified in Section 8.3 of the Credit Agreement.

      


      (g)       
    To the extent that any payment by or on behalf of
Borrower is made to the Administrative Agent or any other Guaranteed Party, or
the Administrative Agent or any other Guaranteed Party exercises its right of
setoff, and such payment or the proceeds of such setoff or any part thereof is
subsequently invalidated, declared to be fraudulent or preferential, set aside
or required (including pursuant to any settlement entered into by the
Administrative Agent or any other Guaranteed Party in its discretion) to be
repaid to a trustee, receiver or any other party, in connection with any
proceeding under any Insolvency Proceeding or otherwise, then (i) to the extent
of such recovery, the obligation or part thereof originally intended to be
satisfied shall be revived and continued in full force and effect as if such
payment had not been made or such setoff had not occurred, and (ii) each Lender
and the L/C Issuer severally (by its acceptance hereof) agrees to pay to the
Administrative Agent upon demand its applicable share (without duplication) of
any amount so recovered from or repaid by the Administrative Agent, plus
interest thereon from the date of such demand to the date such payment is made
at a rate per annum equal to the Federal Funds Rate from time to time in
effect.  The obligations of the Lenders and the L/C Issuer under
clause (ii) of the preceding sentence shall survive the payment in full of the
Guaranteed Obligations and the termination of this Payment
Guaranty.

      


      (h)      
     Notwithstanding anything to the contrary contained
herein or in Guarantor Document, the interest paid or agreed to be paid
hereunder and under the other Guarantor Documents shall not exceed the maximum
rate of non-usurious interest permitted by applicable Law (the “Maximum
Rate”).  If the Administrative Agent or any other Guaranteed
Party shall receive interest in an amount that exceeds the Maximum Rate, the
excess interest shall be applied to the principal of the Guaranteed Obligations
or, if it exceeds such unpaid principal, refunded to such Permitted
Affiliate.  In determining whether the interest contracted for,
charged, or received by the Administrative Agent or any other Guaranteed Party
exceeds the Maximum Rate, such Person may, to the extent permitted by applicable
Law, (i) characterize any payment that is not principal as an expense, fee, or
premium rather than interest, (ii) exclude voluntary prepayments and the effects
thereof, and (iii) amortize, prorate, allocate, and spread in equal or unequal
parts the total amount of interest throughout the contemplated term of the
Obligations hereunder.

      


      (i)       
    The agreements in this Section 24 shall survive the
payment of all Guaranteed Obligations.

      


      Section
25.            Stay of
Acceleration.  In the event that acceleration of the time for
payment of any of the obligations guaranteed hereunder is stayed, in connection
with any Insolvency Proceeding commenced by or against any Permitted Affiliate
or Borrower, or otherwise, all such amounts shall nonetheless be payable jointly
and severally by each Permitted Affiliate immediately upon demand by the
Administrative Agent.

      


      
        
          
             


          

          
            F-2-16

            
              

            

          

          
             


          

        

      

      


      Section
26.       
     Setoff.  If
an Event of Default shall have occurred and be continuing, each Lender and the
L/C Issuer is hereby authorized at any time and from time to time, to the
fullest extent permitted by applicable law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final, in whatever
currency) at any time held and other obligations (in whatever currency) at any
time owing by such Lender or the L/C Issuer to or for the credit or the account
of any Permitted Affiliate against any and all of the obligations of the
Permitted Affiliates now or hereafter existing under this Payment Guaranty or
any other Guarantor Document to such Lender or the L/C Issuer, irrespective of
whether or not such Lender or the L/C Issuer shall have made any demand under
this Payment Guaranty or any other Loan Document and although such obligations
of such Permitted Affiliate may be contingent or unmatured or are owed to a
branch or office of such Lender or the L/C Issuer different from the branch or
office holding such deposit or obligated on such indebtedness.  The
rights of each Lender and the L/C Issuer under this Section are in addition to
other rights and remedies (including other rights of setoff) that such Lender or
the L/C Issuer may have.  Each Lender and the L/C Issuer (by its
acceptance hereof) agrees to notify the affected Permitted Affiliate and the
Administrative Agent promptly after any such setoff and application, provided
that the failure to give such notice shall not affect the validity of such
setoff and application.

      


      Section
27.       
     Integration;
Modifications.  This Payment Guaranty (a) integrates all the
terms and conditions mentioned in or incidental to this Payment Guaranty, (b)
supersedes all oral negotiations and prior writings with respect to its subject
matter, and (c) is intended by each Permitted Affiliate, the Administrative
Agent and the other Guaranteed Parties as the final expression of the agreement
with respect to the terms and conditions set forth in this Payment Guaranty and
as the complete and exclusive statement of the terms agreed to by each Permitted
Affiliate, the Administrative Agent and the other Guaranteed
Parties.  No representation, understanding, promise or condition shall
be enforceable against any Permitted Affiliate or any Guaranteed Party unless it
is contained in this Payment Guaranty.  This Payment Guaranty may not
be modified except in a writing signed by both Administrative Agent and the
Permitted Affiliate that is to be bound by such modification.  No
course of prior dealing, usage of trade, parol or extrinsic evidence of any
nature shall be used to supplement, modify or vary any of the terms
hereof.

      


      Section
28.            Miscellaneous.  The
legal incapacity of any Permitted Affiliate shall not terminate the obligations
of such Permitted Affiliate under this Payment Guaranty, including its
obligations with regard to future advances under the Loan
Documents.  The liability of all persons who are in any manner
obligated under this Payment Guaranty shall be joint and several.  The
illegality or unenforceability of one or more provisions of this Payment
Guaranty shall not affect any other provision.  Time is of the essence
in the performance of this Payment Guaranty by each Permitted
Affiliate.

      


      Section
29.            Counsel.  Each
Permitted Affiliate acknowledges that such Permitted Affiliate has had adequate
opportunity to carefully read this Guarantee and to consult with an attorney of
such Permitted Affiliate’s choice prior to signing it.

      


      
        
          
             


          

          
            F-2-17

            
              

            

          

          
             


          

        

      

      


      Section
30.            Future Permitted
Affiliates.  At such time following the date hereof as any
subsidiary of Borrower, Guarantor or any Permitted Affiliate becomes an owner of
an Unencumbered Asset Pool Property (an “Acceding Permitted
Affiliate”), such Acceding Permitted Affiliate shall execute and deliver
to the Administrative Agent an accession agreement substantially in the form of
Annex 1 (the “Accession
Agreement”), signifying its agreement to be bound by the provisions of
this Payment Guaranty as a Permitted Affiliate to the same extent as if such
Acceding Permitted Affiliate had originally executed this Payment Guaranty as of
the date hereof.

      


      Section
31.            Counterparts.  This
Payment Guaranty may be executed in one or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.

      


      Section
32.            USA PATRIOT Act
Notice.  Each Lender that is subject to the Act (as hereinafter
defined) and the Administrative Agent (for itself and not on behalf of any
Lender) hereby notifies each Permitted Affiliate that pursuant to the
requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into
law October 26, 2001)) (the “Act”), it is required
to obtain, verify and record information that identifies such Permitted
Affiliate, which information includes the name and address of such Permitted
Affiliate and other information that will allow such Lender or the
Administrative Agent, as applicable, to identify such Permitted Affiliate in
accordance with the Act.

      


      Section
33.            Time is of the
Essence.  Time is of the essence of this Payment Guaranty and
the other Guarantor Documents.

      


      Section
34.            Severability.  If
any provision of this Payment Guaranty or the other Guarantor Documents is held
to be illegal, invalid or unenforceable, (a) the legality, validity and
enforceability of the remaining provisions of this Payment Guaranty and the
other Guarantor Documents shall not be affected or impaired thereby and (b) the
parties shall endeavor in good faith negotiations to replace the illegal,
invalid or unenforceable provisions with valid provisions the economic effect of
which comes as close as possible to that of the illegal, invalid or
unenforceable provisions.  The invalidity of a provision in a
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.

      


      Section
35.            Defined
Terms.  As used in this Payment Guaranty (including in the
recitals hereof), the following terms shall have the following
meanings:

      


      “Bankruptcy Code”
means the Federal Bankruptcy Reform Act of 1978 (11 U.S.C. §101, et
seq.).

      


      “Excluded Taxes”
means, with respect to any Guaranteed Party or any other recipient of any
payment to be made by or on account of any Guaranteed Obligation hereunder, (a)
taxes imposed on or measured by its overall net income (however denominated),
and franchise taxes imposed on it, under the laws of any Governmental Authority,
(b) any branch profits taxes imposed by the United States or any similar tax
imposed by any Governmental Authority, and (c) in the case of a Guaranteed Party
that is a Foreign Lender, any withholding tax that is imposed on amounts payable
to such Foreign Lender at the time such Foreign Lender becomes a party to the
Agreement (or designates a new Lending Office) or is attributable to such
Foreign Lender’s failure or inability (other than as a result of a Change in
Law) to comply with Section 3.1.5 of the
Agreement, except to the extent that such Foreign Lender (or its assignor, if
any) was entitled, at the time of designation of a new Lending Office (or
assignment), to receive additional amounts with respect to such withholding tax
pursuant to Section 3.1.5 of the Agreement.

      


      
        
          
             


          

          
            F-2-18

            
              

            

          

          
             


          

        

      

      


      “Guaranteed
Obligations” means the obligations guaranteed by the Permitted Affiliates
hereunder, as set forth in Sections 1 and 2.

      


      “Guaranteed Parties”
means the Administrative Agent, the L/C Issuer, the Swing Line Lender and the
Lenders.

      


      “Guarantor Documents”
means this Payment Guaranty and all other certificates, documents, agreements
and instruments delivered to any Permitted Affiliate under or in connection with
this Payment Guaranty.

      


      “Indemnified Taxes”
means Taxes other than Excluded Taxes.

      


      “Loan Party” means
Borrower, Guarantor and each Permitted Affiliate.

      


      “Other Taxes” means
all present or future stamp or documentary taxes or any other excise or property
taxes, charges or similar levies arising from any payment made hereunder or
under any other Guarantor Document or from the execution, delivery or
enforcement of, or otherwise with respect to, this Payment Guaranty or any other
Guarantor Document.  Other Taxes shall not include any Excluded
Taxes.

      


      “Taxes” means all
present or future taxes, levies, imposts, duties, deductions, withholdings,
assessments, fees or other charges imposed by any Governmental Authority and
arising from any payment made hereunder or under any other Guarantor Document or
from the execution, delivery or enforcement of, or otherwise with respect to,
this Payment Guaranty or any other Guarantor Document, including any interest,
additions to tax or penalties applicable thereto.

      


      
        
          
             


          

          
            F-2-19

            
              

            

          

          
             


          

        

      

      


      IN
WITNESS WHEREOF, each Permitted Affiliate has executed this Payment Guaranty, as
of the date first above written.

      


      
        	
                Address
      Where Notices to Administrative

              	
                JMS
      ACQUISITION LLC, a Delaware limited

              	 
      
	
                Agent
      are to be Sent:

              	
                liability
      company

              	 
      
	 
      	 
      	 
      	 
      	 
      	 
      
	
                PNC
      Bank, National Association

              	
                By:

              	
                ESSEX
      PORTFOLIO, L.P., a California

              	 
      
	
                500
      First Avenue

              	 
      	
                limited
      partnership, its sole member

              	 
      
	
                Pittsburgh
      PA  5219

              	 
      	 
      	 
      	 
      	 
      
	
                Attention:  Trina
      Barkley

              	 
      	
                By:

              	
                Essex
      Property Trust, Inc.,

              	 
      
	
                Mail
      Stop:  P7-PFSC-04-P

              	 
      	 
      	
                a
      Maryland corporation, its

              	 
      
	
                Telephone:  412-768-0423

              	 
      	 
      	
                General
      Partner

              	 
      
	
                Facsimile:  412-762-8672

              	 
      	 
      	 
      	 
      	 
      
	
                Email:  trina.barkley@pncbank.com

              	 
      	 
      	
                By:

              	 
      	 
      
	 	 	 	 	

                Name:

              	 
	
                and

              	 
      	 
      	 
      	
                

                  Title

                

              	 
      
	 
      	 
      	 
      	 
      	
                 

              	 
      
	
                PNC
      Real Estate

              	 
      	 
      	 
      	 
      	 
      
	
                One
      PNC Plaza, 249 Fifth Avenue

              	
                Address
      where Notices are to be sent:

              	 
      
	
                Pittsburgh
      PA  15222

              	 
      	 
      	 
      	 
      	 
      
	
                Attention:  Karen
      Kennedy

              	
                JMS
      Acquisition, LLC

              	 
      
	
                Mailstop:  P1-POPP-19-1

              	
                c/o
      Essex Property Trust, Inc.

              	 
      
	
                Telephone:  412-762-3293

              	
                925
      E. Meadow Drive

              	 
      
	
                Facsimile:  412-762-6500

              	
                Palo
      Alto, California  94303

              	 
      
	
                Email:  kkennedy@pnc.com

              	
                Attn:  Mark
      J. Mikl; Jordan E. Ritter and

              	 
      
	 
      	
                Michael
      T. Dance

              	 
      
	 
      	
                Facsimile:  (650)
      843-1514; (650) 858-1372

              	 
      
	 
      	
                and
      (650) 858-0139

              	 
      
	 	 	 


      

      


      
        
          
             


          

          
            F-2-20

            
              

            

          

          
             


          

        

      

       

      
        	
                ESSEX
      BRIDLE TRAILS, L.P., a California

              	 
      	
                ESSEX
      GLENBROOK, LLC, a Delaware

              	 
      
	
                limited
      partnership

              	 
      	
                limited
      liability company

              	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	
                By:

              	
                Essex
      Management Corporation,

              	 
      	
                By:

              	
                Essex
      Portfolio, L.P.,

              	 
      
	 
      	
                a
      California corporation, its general

              	 
      	 
      	
                a
      California limited partnership,

              	 
      
	 
      	
                partner

              	 
      	 
      	
                its
      sole member

              	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	
                By:

              	 
      	 
      	 
      	
                By:

              	
                Essex
      Property Trust, Inc., a

              	 
      
	 
      	 
      	
                Name:

              	 
      	 
      	 
      	
                Maryland
      corporation, its general

              	 
      
	 
      	 
      	
                Title:

              	 
      	 
      	 
      	
                partner

              	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	
                Address
      where Notices are to be sent:

              	 
      	 
      	 
      	
                By:

              	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	
                Name:

              	 
      
	
                Essex
      Bridle Trails, L.P.

              	 
      	 
      	 
      	 
      	
                Title:

              	 
      
	
                c/o
      Essex Property Trust, Inc.

              	 
      	 
      	 
      	 
      	 
      	 
      
	
                925
      E. Meadow Drive

              	 
      	
                Address
      where Notices are to be sent:

              	 
      
	
                Palo
      Alto, California  94303

              	 
      	 
      	 
      
	
                Attn:  Mark
      J. Mikl; Jordan E. Ritter and

              	 
      	
                Essex
      Glenbrook, LLC

              	 
      
	
                Michael
      T. Dance

              	 
      	
                c/o
      Essex Property Trust, Inc.

              	 
      
	
                Facsimile:  (650)
      843-1514; (650) 858-1372

              	 
      	
                925
      E. Meadow Drive

              	 
      
	
                and
      (650) 858-0139

              	 
      	
                Palo
      Alto, California  94303

              	 
      
	 
      	 
      	
                Attn:  Mark
      J. Mikl; Jordan E. Ritter and

              	 
      
	 
      	 
      	 
      	 
      	
                Michael
      T. Dance

              	 
      
	 
      	 
      	 
      	 
      	
                Facsimile:  (650)
      843-1514; (650) 858-1372

              	 
      
	 
      	 
      	 
      	 
      	
                and
      (650) 858-0139

              	 
      
	 
      	 
      	 
      	 
      	 
      	 
      


      

      


      
        
          
             


          

          
            F-2-21

            
              

            

          

          
             


          

        

      

       

      
        	
                ESSEX
      CHESTNUT APARTMENTS, L.P.,

              	 
      	
                ESSEX
      MARINA CITY CLUB, L.P.,

              	 
      
	
                a
      California limited partnership

              	 
      	
                a
      California limited partnership

              	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	
                By:

              	
                ESSEX
      SPE, LLC, a Delaware limited

              	 
      	
                By:

              	
                Essex
      MCC, LLC, a Delaware limited

              	 
      
	 
      	
                liability
      company, its general partner

              	 
      	 
      	
                liability
      company, its general partner

              	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	
                By:

              	
                Essex
      Portfolio, L.P., a California

              	 
      	 
      	
                By:

              	
                Essex
      Portfolio, L.P., a California

              	 
      
	 
      	 
      	
                limited
      partnership, its sole member

              	 
      	 
      	 
      	
                limited
      partnership, its sole

              	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	
                member

              	 
      
	 
      	 
      	
                By:

              	
                Essex
      Property Trust, Inc.,

              	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	
                a
      Maryland corporation, its

              	 
      	 
      	 
      	
                By:

              	
                Essex
      Property Trust, Inc.,

              	 
      
	 
      	 
      	 
      	
                general
      partner

              	 
      	 
      	 
      	 
      	
                a
      Maryland corporation, its

              	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	
                general
      partner

              	 
      
	 
      	 
      	 
      	
                By:

              	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	
                Name:

              	 
      	 
      	 
      	 
      	
                By:

              	 
      	 
      
	 
      	 
      	 
      	 
      	
                Title:

              	 
      	 
      	 
      	 
      	 
      	
                Name:

              	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	
                Title:

              	 
      
	
                Address
      where Notices are to be sent:

              	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	
                Address
      where Notices are to be sent:

              	 
      
	
                Essex
      Chestnut Apartments, L.P.

              	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	
                c/o
      Essex Property Trust, Inc.

              	 
      	
                Essex
      Marina City Club, L.P.

              	 
      
	
                925
      E. Meadow Drive

              	 
      	
                c/o
      Essex Property Trust, Inc.

              	 
      
	
                Palo
      Alto, California  94303

              	 
      	
                925
      E. Meadow Drive

              	 
      
	
                Attn:  Mark
      J. Mikl; Jordan E. Ritter and

              	 
      	
                Palo
      Alto, California  94303

              	 
      
	
                Michael
      T. Dance

              	 
      	
                Attn:  Mark
      J. Mikl; Jordan E. Ritter and

              	 
      
	
                Facsimile:  (650)
      843-1514; (650) 858-1372

              	 
      	
                Michael
      T. Dance

              	 
      
	
                and
      (650) 858-0139

              	 
      	
                Facsimile:  (650)
      843-1514; (650) 858-1372

              	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	
                and
      (650) 858-0139

              	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      


      

      


      
        
          
             


          

          
            F-2-22

            
              

            

          

          
             


          

        

      

       

      
        	
                ESSEX
      COLUMBUS LLC, a Delaware

              	 
      	
                NEWPORT
      BEACH NORTH LLC,

              	 
      
	
                limited
      liability company

              	 
      	
                a
      Delaware limited liability company

              	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	
                By:

              	
                Essex
      Columbus, Inc., a California

              	 
      	
                By:

              	
                Newport
      Beach North, Inc., a Delaware

              	 
      
	 
      	
                corporation,
      its managing member

              	 
      	 
      	
                corporation,
      its managing member

              	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	
                By:

              	 
      	 
      	 
      	
                By:

              	 
      	 
      
	 
      	 
      	
                Name:

              	 
      	 
      	 
      	
                Name:

              	 
      
	 
      	 
      	
                Title:

              	 
      	 
      	 
      	
                Title:

              	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	
                Address
      to where Notices are to be sent:

              	 
      	
                Address
      where Notices are to be sent:

              	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	
                Essex
      Columbus LLC

              	 
      	
                Newport
      Beach North LLC

              	 
      
	
                c/o
      Essex Property Trust, Inc.

              	 
      	
                c/o
      Essex Property Trust, Inc.

              	 
      
	
                925
      E. Meadow Drive

              	 
      	
                925
      E. Meadow Drive

              	 
      
	
                Palo
      Alto, California  94303

              	 
      	
                Palo
      Alto, California  94303

              	 
      
	
                Attn:  Mark
      J. Mikl; Jordan E. Ritter and

              	 
      	
                Attn:  Mark
      J. Mikl; Jordan E. Ritter and

              	 
      
	
                Michael
      T. Dance

              	 
      	
                Michael
      T. Dance

              	 
      
	
                Facsimile:  (650)
      843-1514; (650) 858-1372

              	 
      	
                Facsimile:  (650)
      843-1514; (650) 858-1372

              	 
      
	
                and
      (650) 858-0139

              	 
      	
                and
      (650) 858-0139

              	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      


      

      
        	
                ESSEX
      TRACY DEVELOPMENT, INC.,

              	 
      	
                ESSEX
      EUCLID, LLC, a Delaware limited

              	 
      
	
                a
      California corporation

              	 
      	
                liability
      company

              	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	
                By:

              	
                Essex
      Portfolio, L.P., a California

              	 
      
	 
      	 
      	 
      	 
      	
                limited
      partnership, its sole member

              	 
      
	
                By:

              	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	
                Name:

              	 
      	 
      	
                By:

              	
                Essex
      Property Trust, Inc., a

              	 
      
	 
      	
                Title:

              	 
      	 
      	 
      	
                Maryland
      corporation, its general

              	 
      
	 
      	 
      	 
      	 
      	 
      	
                partner

              	 
      	 
      
	
                Address
      where Notices are to be sent:

              	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	
                By:

              	 
      	 
      
	
                Essex
      Tracy Development, Inc.

              	 
      	 
      	 
      	 
      	
                Name:

              	 
      
	
                c/o
      Essex Property Trust, Inc.

              	 
      	 
      	 
      	 
      	
                Title:

              	 
      
	
                925
      E. Meadow Drive

              	 
      	 
      	 
      	 
      	 
      	 
      
	
                Palo
      Alto, California  94303

              	 
      	
                Address
      where Notices are to be sent:

              	 
      
	
                Attn:  Mark
      J. Mikl; Jordan E. Ritter and

              	 
      	 
      	 
      	 
      	 
      	 
      
	
                Michael
      T. Dance

              	 
      	
                Essex
      Euclid, LLC

              	 
      
	
                Facsimile:  (650)
      843-1514; (650) 858-1372

              	 
      	
                c/o
      Essex Property Trust, Inc.

              	 
      
	
                and
      (650) 858-0139

              	 
      	
                925
      E. Meadow Drive

              	 
      
	 
      	 
      	 
      	
                Palo
      Alto, California  94303

              	 
      
	 
      	 
      	 
      	
                Attn:  Mark
      J. Mikl; Jordan E. Ritter and

              	 
      
	 
      	 
      	 
      	
                Michael
      T. Dance

              	 
      
	 
      	 
      	 
      	
                Facsimile:  (650)
      843-1514; (650) 858-1372

              	 
      
	 
      	 
      	 
      	
                and
      (650) 858-0139

              	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      


      

      


      
        
          
             


          

          
            F-2-23

            
              

            

          

          
             


          

        

      

       

      
        	
                ESSEX
      BLUFFS, L.P., a California limited

              	 
      	
                ESSEX
      SUNPOINTE LTD., a California

              	 
      
	
                partnership

              	 
      	
                limited
      partnership

              	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	
                By:

              	
                Essex
      Management Corporation,

              	 
      	
                By:

              	
                Essex
      Portfolio, L.P., a California

              	 
      
	 
      	
                a
      California corporation, its general

              	 
      	 
      	
                limited
      partnership, its general partner

              	 
      
	 
      	
                partner

              	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	
                By:

              	
                Essex
      Property Trust, Inc.,

              	 
      
	 
      	
                By:

              	 
      	 
      	 
      	 
      	
                a
      Maryland corporation, its general

              	 
      
	 
      	 
      	
                Name:

              	 
      	 
      	 
      	
                partner

              	 
      
	 
      	 
      	
                Title:

              	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	
                By:

              	 
      	 
      
	
                Address
      where Notices are to be sent:

              	 
      	 
      	 
      	 
      	
                Name:

              	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	
                Title:

              	 
      
	
                Essex
      Bluffs, L.P.

              	 
      	 
      	 
      	 
      	 
      	 
      
	
                c/o
      Essex Property Trust, Inc.

              	 
      	
                Address
      where Notices are to be sent:

              	 
      
	
                925
      E. Meadow Drive

              	 
      	 
      	 
      	 
      	 
      	 
      
	
                Palo
      Alto, California  94303

              	 
      	
                Essex
      Sunpointe Ltd.

              	 
      
	
                Attn:  Mark
      J. Mikl; Jordan E. Ritter and

              	 
      	
                c/o
      Essex Property Trust, Inc.

              	 
      
	
                Michael
      T. Dance

              	 
      	
                925
      E. Meadow Drive

              	 
      
	
                Facsimile:  (650)
      843-1514; (650) 858-1372

              	 
      	
                Palo
      Alto, California  94303

              	 
      
	
                and
      (650) 858-0139

              	 
      	
                Attn:  Mark
      J. Mikl; Jordan E. Ritter and

              	 
      
	 
      	 
      	 
      	 
      	
                Michael
      T. Dance

              	 
      
	 
      	 
      	 
      	 
      	
                Facsimile:  (650)
      843-1514; (650) 858-1372

              	 
      
	 
      	 
      	 
      	 
      	
                and
      (650) 858-0139

              	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      


      

      


      
        
          
             


          

          
            F-2-24

            
              

            

          

          
             


          

        

      

       

      
        	
                ESSEX
      BERKELEY 4th
      STREET, L.P.,

              	 
      	
                JAYSAC,
      LTD., Texas limited partnership

              	 
      
	
                a
      California limited partnership

              	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	
                By:

              	
                Jaysac
      GP Corp., a Delaware

              	 
      
	
                By:

              	
                Essex
      Berkeley, LLC, a Delaware

              	 
      	 
      	
                corporation,
      its General Partner

              	 
      
	 
      	
                limited
      liability company, its general

              	 
      	 
      	 
      	 
      	 
      
	 
      	
                partner

              	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	
                By:

              	 
      	 
      
	 
      	
                By:

              	
                Essex
      Portfolio, L.P., a California

              	 
      	 
      	 
      	
                Name:

              	 
      
	 
      	 
      	
                limited
      partnership, its sole

              	 
      	 
      	 
      	
                Title:

              	 
      
	 
      	 
      	
                member

              	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	
                Address
      where Notices are to be sent:

              	 
      
	 
      	 
      	
                By:

              	
                Essex
      Property Trust, Inc.,

              	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	
                a
      Maryland corporation, its

              	 
      	
                Jaysac,
      Ltd.

              	 
      
	 
      	 
      	 
      	
                general
      partner

              	 
      	
                c/o
      Essex Property Trust, Inc.

              	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	
                925
      E. Meadow Drive

              	 
      
	 
      	 
      	 
      	
                By:

              	 
      	 
      	
                Palo
      Alto, California  94303

              	 
      
	 
      	 
      	 
      	 
      	
                Name:

              	 
      	
                Attn:  Mark
      J. Mikl; Jordan E. Ritter and

              	 
      
	 
      	 
      	 
      	 
      	
                Title:

              	 
      	
                Michael
      T. Dance

              	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	
                Facsimile:  (650)
      843-1514; (650) 858-1372

              	 
      
	
                Address
      where Notices are to be sent:

              	 
      	
                and
      (650) 858-0139

              	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	
                Essex
      Berkeley 4th Street, L.P.

              	 
      	 
      	 
      	 
      	 
      
	
                c/o
      Essex Property Trust, Inc.

              	 
      	 
      	 
      	 
      	 
      
	
                925
      E. Meadow Drive

              	 
      	 
      	 
      	 
      	 
      
	
                Palo
      Alto, California  94303

              	 
      	 
      	 
      	 
      	 
      
	
                Attn:  Mark
      J. Mikl; Jordan E. Ritter and

              	 
      	 
      	 
      	 
      	 
      
	
                Michael
      T. Dance

              	 
      	 
      	 
      	 
      	 
      
	
                Facsimile:  (650)
      843-1514; (650) 858-1372

              	 
      	 
      	 
      	 
      	 
      
	
                and
      (650) 858-0139

              	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      


      

      


      
        
          
             


          

          
            F-2-25

            
              

            

          

          
             


          

        

      

       

      
        	
                ESSEX
      PARK BOULEVARD, LLC,

              	 
      	
                ESSEX
      VIEW POINT, LLC, a Delaware

              	 
      
	
                a
      Delaware limited liability company

              	 
      	
                limited
      liability company

              	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	
                By:

              	
                Essex
      Portfolio, L.P., a California limited

              	 
      	
                By:

              	
                Essex
      Fidelity I Corporation,

              	 
      
	 
      	
                partnership,
      its sole member

              	 
      	 
      	
                a
      California corporation

              	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	
                By:

              	
                Essex
      Property Trust, Inc.,

              	 
      	 
      	
                By:

              	 
      	 
      
	 
      	 
      	
                a
      Maryland corporation, its general

              	 
      	 
      	 
      	
                Name:

              	 
      
	 
      	 
      	
                partner

              	 
      	 
      	 
      	 
      	
                Title:

              	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	
                By:

              	 
      	 
      	
                Address
      where Notices are to be sent:

              	 
      
	 
      	 
      	 
      	
                Name:

              	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	
                Title:

              	 
      	
                Essex
      View Point, LLC

              	 
      
	 
      	 
      	 
      	 
      	 
      	
                c/o
      Essex Property Trust, Inc.

              	 
      
	
                Address
      where Notices are to be sent:

              	 
      	
                925
      E. Meadow Drive

              	 
      
	 
      	 
      	 
      	 
      	 
      	
                Palo
      Alto, California  94303

              	 
      
	
                Essex
      Park Boulevard, LLC

              	 
      	
                Attn:  Mark
      J. Mikl; Jordan E. Ritter and

              	 
      
	
                c/o
      Essex Property Trust, Inc.

              	 
      	
                Michael
      T. Dance

              	 
      
	
                925
      E. Meadow Drive

              	 
      	
                Facsimile:  (650)
      843-1514; (650) 858-1372

              	 
      
	
                Palo
      Alto, California  94303

              	 
      	
                and
      (650) 858-0139

              	 
      
	
                Attn:  Mark
      J. Mikl; Jordan E. Ritter and

              	 
      	 
      	 
      	 
      	 
      
	
                Michael
      T. Dance

              	 
      	 
      	 
      	 
      	 
      
	
                Facsimile:  (650)
      843-1514; (650) 858-1372

              	 
      	 
      	 
      	 
      	 
      
	
                and
      (650) 858-0139

              	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      


      

      


      
        
          
             


          

          
            F-2-26

            
              

            

          

          
             


          

        

      

      


      Annex
1

      to
the Guaranty

      


      FORM
OF ACCESSION AGREEMENT

      


      
        	
                To:

              	
                PNC
      Bank, National Association, as Administrative
  Agent

              


      

      


      
        	
                Re:

              	
                ____________________

              


      

      


      Ladies
and Gentlemen:

      


      This
Accession Agreement is made and delivered pursuant to Section 30 of that certain
Payment Guaranty dated as of December ___, 2009 (as amended, modified, renewed
or extended from time to time, the “Payment Guaranty”),
made by each Permitted Affiliate named in the signature pages thereof (each a
“Permitted
Affiliate”), in favor of the Lenders party to the Agreement referred to
below, and the L/C Issuer, the Swing Line Lender and PNC Bank, National
Association, as Administrative Agent (in such capacity, the “Administrative
Agent”).  All capitalized terms used in this Accession
Agreement and not otherwise defined herein shall have the meanings assigned to
them in either the Payment Guaranty or the Agreement.

      


      Essex
Portfolio, L.P., a California limited partnership (“Borrower”), is party
to that certain Revolving Credit Agreement dated as of December 18, 2009 (the
“Agreement”) by
and among Borrower, the Lenders from time to time party thereto (the “Lenders”), the L/C
Issuer, the Swing Line Lender and the Administrative Agent.

      


      The
undersigned, ___________________________ [insert name of acceding Permitted
Affiliate], a ____________________ [corporation, partnership, limited
liability company, etc.], is a direct or indirect wholly-owned subsidiary
of Borrower, Guarantor or any Permitted Affiliate that owns an Unencumbered
Asset Pool Property and hereby acknowledges for the benefit of the Guaranteed
Parties that it shall be a “Permitted Affiliate” for all purposes of the Payment
Guaranty effective from the date hereof.  The undersigned confirms
that the representations and warranties set forth in Section 11 of the Payment
Guaranty are true and correct in all material respects as to the undersigned as
of the date hereof.

      


      Without
limiting the foregoing, the undersigned hereby agrees to perform all of the
obligations of a Permitted Affiliate under, and to be bound in all respects by
the terms of, the Payment Guaranty, including, without limitation, Section 11,
Section 12 and Section 13 thereof, to the same extent and with the same force
and effect as if the undersigned were an original signatory
thereto.

      


      This
Accession Agreement shall constitute a Loan Document under the
Agreement.

      


      THIS
ACCESSION AGREEMENT IS TO BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
INTERNAL LAWS OF THE STATE OF CALIFORNIA (AS PERMITTED BY SECTION 1646.5 OF THE
CALIFORNIA CIVIL CODE OR ANY SIMILAR SUCCESSOR PROVISION), WITHOUT GIVING EFFECT
TO ANY CHOICE OF LAW RULE THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY
JURISDICTION OTHER THAN THE INTERNAL LAWS OF THE STATE OF CALIFORNIA TO THE
RIGHTS AND DUTIES OF THE PARTIES.

       

      
        
          
             


          

          
            FA-1

            
              

            

          

          
             


          

        

      

      


      IN
WITNESS WHEREOF, the undersigned has executed this Accession Agreement, as of
the date first above written.

      


      
        	 
      	
                [Acceding
      Permitted Affiliate]

              
	 
      	 
      	 
      
	 
      	
                By

              	 
      
	 
      	
                Title

              	 
      
	 
      	 
      	 
      
	 
      	
                Address
      for Notices:

              
	 
      	
                c/o

              	 
      
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
                Attn.:

              	 
      
	 
      	
                Fax
      No.:

              	 
      
	 
      	
                Email:

              	 
      


      

      


      
        
          
             


          

          
            FA-2

            
              

            

          

          
             


          

        

      

      


      EXHIBIT
G-l

      


      FORM
OF REVOLVING NOTE

      


      REVOLVING
NOTE

       

      
        
          	
                  $_________________________

                	
                  San
      Francisco, California

                
	 
      	
                  December
      18, 2009

                


        

         

      

      FOR VALUE
RECEIVED, ESSEX PORTFOLIO, L.P., a California limited partnership (“Borrower”), promises
to pay to the order of ___________ (“Lender”), at the
offices of PNC Bank, National Association, Administrative Agent for Lender, at
PNC Bank, National Association, PNC Firstside Center, 4th Floor, 500 First
Avenue, Pittsburgh, PA 15219, Attention:  PNC Agency Services, Latonya
Tench, Loan Administrator, or at such other place as Lender may designate in
writing from time to time, the sum of ______________ DOLLARS ($___________), or
the aggregate unpaid principal amount outstanding hereunder, whichever may be
the lesser, in immediately available funds and lawful money of the United States
of America.

      


      Interest
shall accrue on amounts outstanding hereunder in accordance with that certain
Revolving Credit Agreement, dated as of December 18, 2009 (the “Agreement”), among
Borrower, the financial institutions party thereto (collectively, the “Lenders”), and PNC
Bank, National Association, as Administrative Agent for the Lenders (in such
capacity, the “Administrative
Agent”), Swing Line Lender and L/C Issuer (capitalized terms used and not
defined herein shall have the meanings given to them in the
Agreement).  Pursuant thereto, interest shall accrue on amounts
outstanding hereunder from time to time: (a) at a fluctuating per annum rate
equal to the Reference Rate plus the Applicable Reference Rate Margin, or (b) at
Borrower’s option, subject to the terms of the Agreement, at a per annum rate
equal to the LIBOR Rate plus the Applicable LIBOR Margin.  A change in
the interest rate for Reference Rate Loans shall take effect on the day
specified in the public announcement of the change in the Reference
Rate.  Except as otherwise specified in the Agreement, interest shall
be computed on the basis of a 360-day year and actual days
elapsed.  Interest shall become due and payable in accordance with the
terms of the Agreement.

      


      All
unpaid principal and interest outstanding hereunder shall be due and payable as
provided in the Agreement.  This Note may be amended, modified,
supplemented or replaced as provided in the Agreement.

      


      This Note
is one of the Notes referred to in the Agreement, and is issued in conjunction
with, and is entitled to all of the rights, benefits and privileges provided in,
the Agreement, as now existing or as the same may from time to time be
supplemented, modified or amended.  The Agreement, among other things,
provides that amounts outstanding hereunder from time to time may be repaid
pursuant to the Agreement and reborrowed from time to time pursuant to the
Agreement, and contains provisions for acceleration of the maturity hereof upon
the happening of certain stated events.  This Note is entitled to the
benefits of the Guaranty and each Payment Guaranty.

      


      
        
          
             


          

          
            G-1-1

            
              

            

          

          
             


          

        

      

      


      


      Lender
may endorse on a schedule annexed to this Note the date, amount and maturity of
each Loan that it makes pursuant to the Agreement and the amount of each payment
of principal that Borrower makes with respect thereto.  Borrower
irrevocably authorizes Lender to endorse this Note, and Lender’s record shall be
conclusive absent manifest error; provided, however, that Lender’s failure to
make, or its error in making, a notation on the attached schedule with respect
to any Loan shall not limit or otherwise affect Borrower’s obligations to Lender
hereunder or under the Agreement.

      


      Borrower
waives presentment, demand, protest, notice of protest, notice of nonpayment or
dishonor and all other notices in connection with the delivery, acceptance,
performance, default or enforcement of this Note.  Time is of the
essence hereof.

      


      This Note
has been executed by the undersigned in the State of California.  THIS
NOTE IS TO BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE INTERNAL LAWS OF
THE STATE OF CALIFORNIA (AS PERMITTED BY SECTION 1646.5 OF THE CALIFORNIA CIVIL
CODE OR ANY SIMILAR SUCCESSOR PROVISION), WITHOUT GIVING EFFECT TO ANY CHOICE OF
LAW RULE THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER
THAN THE INTERNAL LAWS OF THE STATE OF CALIFORNIA TO THE RIGHTS AND DUTIES OF
THE PARTIES.

      


      
        	 
      	
                ESSEX
      PORTFOLIO, L.P.,

              
	 
      	
                a
      California limited partnership

              
	 
      	 
      	 
      	 
      
	 
      	
                By:

              	
                ESSEX
      PROPERTY TRUST, INC.,

              
	 
      	 
      	
                a
      Maryland corporation

              
	 
      	 
      	
                its
      General Partner

              
	 
      	 
      	 
      	 
      
	 
      	 
      	
                By:

              	 
      
	 
      	 
      	
                Name:

              	 
      
	 
      	 
      	
                Title:

              	 
      


      

      


      
        
          
             


          

          
            G-1-2

            
              

            

          

          
             


          

        

      

      


      EXHIBIT
G-2

      


      FORM
OF SWING LINE NOTE

      


      REVOLVING
NOTE

       (Swing
Line)

      


      
        	
                $20,000,000

              	
                San
      Francisco, California

              
	 
      	
                December
      18, 2009

              


      

      


      FOR VALUE
RECEIVED, ESSEX PORTFOLIO, L.P., a California limited partnership (“Borrower”), promises
to pay to the order of PNC BANK, NATIONAL ASSOCIATION (“Swing Line Lender”), at the
offices of PNC Bank, National Association, Administrative Agent for Swing Line
Lender, at PNC Bank, National Association, Administrative Agent for Lender, at
PNC Bank, National Association, PNC Firstside Center, 4th Floor, 500 First
Avenue, Pittsburgh, PA 15219, Attention:  PNC Agency Services, Latonya
Tench, Loan Administrator, or at such other place as Swing Line Lender may
designate in writing from time to time, the sum of TWENTY MILLION DOLLARS
($20,000,000), or the aggregate unpaid principal amount outstanding hereunder,
whichever may be the lesser, in immediately available funds and lawful money of
the United States of America.

      


      Interest
shall accrue on amounts outstanding hereunder in accordance with that certain
Revolving Credit Agreement, dated as of December 18, 2009 (the “Agreement”), among
Borrower, the financial institutions party thereto (collectively, the “Lenders”), and PNC
Bank, National Association, as Administrative Agent for the Lenders (in such
capacity, the “Administrative
Agent”), Swing Line Lender and L/C Issuer (capitalized terms used and not
defined herein shall have the meanings given to them in the
Agreement).  Pursuant thereto, interest shall accrue on amounts
outstanding hereunder from time to time at a fluctuating per annum rate equal to
the Reference Rate plus the Applicable Reference Rate Margin.  A
change in the interest rate for Swing Line Loans shall take effect on the day
specified in the public announcement of the change in the Reference
Rate.  Except as otherwise specified in the Agreement, interest shall
be computed on the basis of a 360-day year and actual days
elapsed.  Interest shall become due and payable in accordance with the
terms of the Agreement.

      


      All
unpaid principal and interest outstanding hereunder shall be due and payable as
provided in the Agreement.

      


      This is
the Swing Line Note referred to in the Agreement, and is issued in conjunction
with, and is entitled to all of the rights, benefits and privileges provided in,
the Agreement, as now existing or as the same may from time to time be
supplemented, modified or amended.  The Agreement, among other things,
provides that amounts outstanding hereunder from time to time may be repaid
pursuant to the Agreement and reborrowed from time to time pursuant to the
Agreement, and contains provisions for acceleration of the maturity hereof upon
the happening of certain stated events.  This Swing Line Note is
entitled to the benefits of the Guaranty and each Payment Guaranty.

      


      
        
          
             


          

          
            G-2-1

            
              

            

          

          
             


          

        

      

      


      


      Swing
Line Lender may endorse on a schedule annexed to this Swing Line Note the date,
amount and maturity of each Swing Loan that it makes pursuant to the Agreement
and the amount of each payment of principal that Borrower makes with respect
thereto.  Borrower irrevocably authorizes Swing Line Lender to endorse
this Swing Line Note, and Swing Line Lender’s record shall be conclusive absent
manifest error; provided, however, that Swing Line Lender’s failure to make, or
its error in making, a notation on the attached schedule with respect to any
Swing Loan shall not limit or otherwise affect Borrower’s obligations to Swing
Line Lender hereunder or under the Agreement.

      


      Borrower
waives presentment, demand, protest, notice of protest, notice of nonpayment or
dishonor and all other notices in connection with the delivery, acceptance,
performance, default or enforcement of this Swing Line Note.  Time is
of the essence hereof.

      


      This
Swing Line Note has been executed by the undersigned in the State of
California.  THIS SWING LINE NOTE IS TO BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF CALIFORNIA (AS PERMITTED
BY SECTION 1646.5 OF THE CALIFORNIA CIVIL CODE OR ANY SIMILAR SUCCESSOR
PROVISION), WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW RULE THAT WOULD CAUSE THE
APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE INTERNAL LAWS OF THE
STATE OF CALIFORNIA TO THE RIGHTS AND DUTIES OF THE PARTIES.

      


      
        	 
      	
                ESSEX
      PORTFOLIO, L.P.,

              
	 
      	
                a
      California limited partnership

              
	 
      	 
      	 
      	 
      
	 
      	
                By:

              	
                ESSEX
      PROPERTY TRUST, INC.,

              
	 
      	 
      	
                a
      Maryland corporation its

              
	 
      	 
      	
                General
      Partner

              
	 
      	 
      	 
      	 
      
	 
      	 
      	
                By:

              	 
      
	 
      	 
      	
                Name:

              	 
      
	 
      	 
      	
                Title:

              	 
      


      

      


      
        
          
             


          

          
            G-2-2

            
              

            

          

          
             


          

        

      

      


      SCHEDULE
1.1

      


      LENDERS
NAMES, ADDRESSES AND PRO RATA SHARES

      


      
        	
                Lender

              	 	
                Commitment

              	 	 	
                Pro
      Rata Share

              	 
	 
      	 	 	 	 	 	 
	
                PNC
      Bank, National Association

              	 	$	35,000,000	 	 	 	17.50	%
	 	 	 	 	 	 	 	 	 
	
                Union
      Bank, N.A.

              	 	$	35,000,000	 	 	 	17.50	%
	 	 	 	 	 	 	 	 	 
	
                Wells
      Fargo, National Association

              	 	$	35,000,000	 	 	 	17.50	%
	 	 	 	 	 	 	 	 	 
	
                Chevy
      Chase Bank, F.S.B.

              	 	$	25,000,000	 	 	 	12.50	%
	 	 	 	 	 	 	 	 	 
	
                Comerica
      Bank

              	 	$	25,000,000	 	 	 	12.50	%
	 	 	 	 	 	 	 	 	 
	
                US
      Bank, National Association

              	 	$	25,000,000	 	 	 	12.50	%
	 	 	 	 	 	 	 	 	 
	
                Keybank,
      N.A.

              	 	$	20,000,000	 	 	 	10.00	%
	 	 	 	 	 	 	 	 	 
	
                Total

              	 	$	200,000,000	 	 	 	100.00	%


      

      


      
        
          
             


          

          
            Sch.1.1-1

            
              

            

          

          
             


          

        

      

      


      SCHEDULE
1.2

      


      ADMINISTRATIVE
AGENT’S OFFICE;

      AGENT’S
PAYMENT OFFICE

      


      BORROWER:

      


      ESSEX
PORTFOLIO, L.P.

      c/o:
Essex Property Trust, Inc.

      925 East
Meadow Drive

      Palo Alto
CA  94303

      Attention:  Mark
J. Mikl; Jordan E. Ritter and Michael T. Dance

      Facsimile:  (650)
843-1514; (650) 858-1372 and (650) 858-0139

      Telephone:
(650) 849-1614; (650) 849-1659 and 650-849-1706

      Email:
mmikl@essexpropertytrust.com; jritter@essexpropertytrust.com and
mdance@essexpropertytrust.com

      


      ADMINISTRATIVE
AGENT:

      


      Administrative Agent’s
Office

      (for
payments, advances and financial information):

      


      PNC Bank,
National Association

      PNC
Firstside Center, 4th Floor

      500 First
Avenue

      Pittsburgh
PA  15219

      
        	
                Attention:

              	
                PNC
      Agency Services

              


      

      Latonya
Tench

      Loan
Administrator

      Telephone:  412-768-0403

      Facsimile:  412-762-8672

      Email:  latonya.tench@pnc.com

      


      


      Wire
instructions for PNC Agency Services:

      PNC Bank,
Pgh

      ABA 043
000 096

      Account
#GL 13076-001-7005

      Account
Name:  Wire Suspense-Agency Services

      Ref:  Essex
Portfolio, L.P.

      


      
        
          
             


          

          
            Sch.1.2-1

            
              

            

          

          
             


          

        

      

      


      (for
extensions of the maturity date, amendments and/or changes to credit agreement
and any other notices to Administrative Agent):

      


      PNC Bank,
National Association

      PNC
Firstside Center, 5th Floor

      500 First
Avenue

      Pittsburgh
PA  15219

      
        	
                Attention:

              	
                PNC
      Agency Services

              


      

      Trina
Barkley

      Assistant
Vice President

      Mailstop:  P7-PFSC-05-W

      Telephone:  412-768-0423

      Facsimile:  412-705-2006

      Email:  trina.barkley@pncbank.com

      


      and

      


      PNC Real
Estate

      One PNC
Plaza, 249 Fifth Avenue

      Pittsburgh
PA  15222

      Attention:  Karen
Kennedy

      Mailstop:  P1-POPP-19-1

      Telephone:  412-762-3293

      Facsimile:  412-762-6500

      Email:  kkennedy@pnc.com

      


      L/C
ISSUER:

      PNC Bank,
National Association

      PNC
Firstside Center, 4th Floor

      500 First
Avenue

      Pittsburgh
PA  15219

      
        	
                Attention:

              	
                PNC
      Agency Services

              


      

      Latonya
Tench

      Loan
Administrator

      Telephone:  412-768-0403

      Facsimile:  412-762-8672

      Email:  latonya.tench@pnc.com

      


      and

      


      PNC Real
Estate

      One PNC
Plaza, 249 Fifth Avenue

      Pittsburgh
PA  15222

      Attention:  Karen
Kennedy

      Mailstop:  P1-POPP-19-1

      Telephone:  412-762-3293

       

      
        
          
          

        

        
          Sch.1.2-2

          
            

          

        

        
          
          

        

      

       

      Facsimile:  412-762-6500

      Email:  kkennedy@pnc.com

      


      
        
          
             


          

          
            Sch.1.2-3

            
              

            

          

          
             


          

        

      

      


      SWING
LINE LENDER:

       

      PNC Bank,
National Association

      500 First
Avenue

      Pittsburgh
PA  5219

      Attention:  Trina
Barkley

      Mail
Stop:  P7-PFSC-04-P

      Telephone:  412-768-0423

      Facsimile:  412-762-8672

      Email:  trina.barkley@pncbank.com

      


      and

      


      PNC Real
Estate

      One PNC
Plaza, 249 Fifth Avenue

      Pittsburgh
PA  15222

      Attention:  Karen
Kennedy

      Mailstop:  P1-POPP-19-1

      Telephone:  412-762-3293

      Facsimile:  412-762-6500

      Email:  kkennedy@pnc.com

      


      Wire
instructions for Agency Services:

      PNC Bank,
Pgh

      ABA 043
000 096

      Account
#GL 13076-001-7005

      Account
Name:  Wire Suspense-Agency Services

      Ref:  Essex
Portfolio, L.P.

      


      
        
          
             


          

          
            Sch.1.2-4

            
              

            

          

          
             


          

        

      

      


      SCHEDULE
1.3

      


      PERMITTED
AFFILIATES

      


      Essex
Berkeley 4th Street, L.P.

      


      Essex
Bluffs, L.P.

      


      Essex
Bridle Trails, L.P.

      


      Essex
Chestnut Apartments, L.P.

      


      Essex
Columbus LLC

      


      Essex
Euclid, LLC

      


      Essex
Glenbrook LLC

      


      Essex
Marina City Club, L.P.

      


      Essex
Park Boulevard, LLC

      


      Essex
Sunpointe Ltd.

      


      Essex
Tracy Development, Inc.

      


      Jaysac,
Ltd.

      


      JMS
Acquisition LLC

      


      Newport
Beach North LLC

      


      Essex
View Pointe, LLC

      


      
        
          
             


          

          
            Sch.1.3-1

            
              

            

          

          
             


          

        

      

      


      SCHEDULE
1.4

      


      PROCESSING AND RECORDATION
FEES

      


      The
Administrative Agent will charge a processing and recordation fee (an “Assignment Fee”‘) in
the amount of $3,500 for each assignment; provided, however, that in the
event of two or more concurrent assignments to members of the same Assignee
Group (which may be effected by a suballocation of an assigned amount among
members of such Assignee Group) or two or more concurrent assignments by members
of the same Assignee Group to a single Eligible Assignee (or to an Eligible
Assignee and members of its Assignee Group), the Assignment Fee will be $3,500
plus the amount set forth below:

      


      
        	
                Transaction

              	 	
                Assignment
      Fee

              	 
	
                First
      four concurrent assignments or suballocations to members of an Assignee
      Group (or from members of an Assignee Group, as
applicable)

              	 	$	0.00	 
	
                Each
      additional concurrent assignment or suballocation to a member of such
      Assignee Group (or from a member of such Assignee Group, as
      applicable)

              	 	$	500	 


      

      


       

      Sch.1.4-1